USA v. Darian Tensley, No. 07-15649 (11th Cir. 2008)

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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS No. 07-15649 Non-Argument Calendar ________________________ ELEVENTH CIRCUIT March 18, 2008 THOMAS K. KAHN CLERK D. C. Docket No. 03-00227-CR-T-23TBM UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DARIAN TENSLEY, a.k.a. Drac Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida _________________________ (March 18, 2008) Before BIRCH, DUBINA and BLACK, Circuit Judges. PER CURIAM: Darian Tensley appeals the district court s denial of his 18 U.S.C. § 3582(c) motion to modify his sentence, based on the U. S. Sentencing Commission s amendment to U.S.S.G. § 2D1.1, which lowered the base offense level for crimes involving cocaine base. We review de novo a district court s finding that it did not have the authority to modify a sentence under § 3582(c)(2). United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002). Amendment 706, effective November 1, 2007, reduced the base offense level for offenses involving at least 50, but less than 150, grams of cocaine base from 32 to 30. See U.S.S.G. App. C, Amend. 706; compare U.S.S.G. § 2D1.1(c)(4) (2006), with U.S.S.G. § 2D1.1(c)(5) (2007). Section 3582(c)(2) states a court may modify a term of imprisonment, based on a Guidelines range that is subsequently lowered by the Sentencing Commission, if the reduction is consistent with applicable policy statements from the Sentencing Commission, and it does not limit the time period when a court may make such a modification. See 18 U.S.C. § 3582(c)(2). A § 3582(c)(2) reduction is not authorized unless the amendment is listed in § 1B1.10(c). U.S.S.G. § 1B1.10(a). Amendment 706 was listed in § 1B1.10(c) effective on March 3, 2008. The district court did not err in denying the motion because Tensley prematurely filed it on November 8, 2007. Although the amendment is retroactive, 2 it did not become retroactive until March 3, 2008. Accordingly, we affirm the district court. AFFIRMED. 3

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