United States v. Keith Lapell Biggins , 304 F. App'x 785 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 18, 2008
No. 08-12157 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 93-04028-CR-4-WS-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEITH LAPELL BIGGINS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(December 18, 2008)
Before ANDERSON, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Keith Lapell Biggins appeals, pro se, the district court’s denial of his motion
for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2), based on Guideline
Amendment 706, which lowered the base offense levels applicable to crack
cocaine sentences. On appeal, Biggins argues that the retroactive crack guideline
amendment reduced his base offense level by two levels, requiring the district
court to reexamine his sentence. Biggins also disputes the district court’s finding
that he was accountable for 4.5 kilograms of crack and insists that he was held
responsible for only 1.5 kilograms. Biggins asserts that the district court was
required to calculate his new guideline range, then use that new range to determine
what sentence to impose. He maintains that the reduction in his base offense level
from 38 to 36 conferred jurisdiction on the district court to reduce his sentence
under § 3582(c).
Biggins argues that the district court then was required to apply United
States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and treat
the guidelines as advisory while determining what sentence to impose. He asserts
that the district court erred by not holding a hearing to consider his post-sentencing
rehabilitation as well as substantial assistance that he might be able to provide to
the government, which would allow the district court to vary downward from the
advisory guidelines range. In his reply brief, Biggins further contends that
U.S.S.G. § 1B1.10(b)(2)(A), which governs how much a district court may reduce
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a sentence pursuant to § 3582, is advisory and thus does not limit the district
court’s authority to sentence him below the amended advisory guidelines range.
Biggins concedes that Booker does not provide an independent basis for a
§ 3582(c) motion, but maintains that once he qualified for a sentence reduction, the
district court had to re-sentence him under the advisory guidelines as required by
Booker.
In an 18 U.S.C. § 3582 appeal, we review “de novo the district court’s legal
conclusions regarding the scope of its authority under the Sentencing Guidelines.”
United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002). We also review
“de novo questions of statutory interpretation.” United States v. Maupin, 520 F.3d
1304, 1306 (11th Cir. 2008). We review a district court’s decision “whether to
reduce a sentence pursuant to 18 U.S.C. § 3852(c)(2), based on a subsequent
change in the sentencing guidelines, for abuse of discretion.” United States v.
Brown, 332 F.3d 1341, 1343 (11th Cir. 2003).
A district court may not modify a term of imprisonment once it has been
imposed except where expressly permitted by statute or by Fed.R.Crim.P. 35.
18 U.S.C. § 3582(c). One statutory exception to this general rule includes relief
under § 3582(c)(2), which provides:
[I]n the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been
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lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o),
upon motion of the defendant or the Director of the Bureau of Prisons,
or on its own motion, the court may reduce the term of imprisonment,
after considering the factors set forth in section 3553(a) to the extent
that they are applicable, if such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2). A sentencing range has been lowered only when the
guideline range has been lowered by a retroactive guideline amendment. United
States v. Moore, ___ F.3d ___, ___, 08-11230, slip op. at 3375 (11th Cir.
September 5, 2008). When a guideline amendment is applied retroactively and
changes a defendant’s base offense level, but does not change the guideline range,
the district court lacks jurisdiction to reduce a sentence under § 3582(c)(2).
Id. at ___, slip op. at 3376.
On November 1, 2007, the Sentencing Commission promulgated
Amendment 706, which amended the Drug Quantity Table in U.S.S.G. § 2D1.1(c).
U.S.S.G. App. C, Amend. 706 (2007). The effect of Amendment 706 is to provide
a two-level reduction in base offense levels for certain crack-cocaine offenses. See
id. The Commission made this amendment retroactively applicable, effective as of
March 3, 2008. See U.S.S.G., App. C, Amend. 713 (Supp. May 1, 2008) (listing
Amendment 706 under U.S.S.G. § 1B1.10(c) as a retroactively applicable
amendment).
Under the current version of the guidelines, possessing between
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1.5 kilograms and 4.5 kilograms of crack yields a base offense level of 36, while
possessing more than 4.5 kilograms of crack yields a base offense level of 38.
U.S.S.G. § 2D1.1(c)(1)-(2) (November 1, 2007 Manual). Under the 1994
Guidelines, possessing between 1.5 kilograms and 5 kilograms yielded a base
offense level of 38. (November 1, 1994 Manual).
The district court did not err by finding that it lacked jurisdiction over
Biggins’s § 3582(c)(2) motion because the retroactive guideline amendment did
not change Biggins’s sentencing range. During Biggins’s original sentencing, the
district court found him responsible for over 4.5 kilograms. Accordingly, we
affirm the district court’s judgment.
AFFIRMED.
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