USA v. Robert Earl Nettles, No. 08-16829 (11th Cir. 2009)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT No. 08-16829 Non-Argument Calendar ________________________ July 20, 2009 THOMAS K. KAHN CLERK D. C. Docket No. 06-14042-CR-JEM UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ROBERT EARL NETTLES, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (July 20, 2009) Before CARNES, HULL and FAY, Circuit Judges. PER CURIAM: Robert Earl Nettles, a federal prisoner convicted of a crack cocaine offense, appeals the district court s denial of his pro se 18 U.S.C. § 3582(c)(2) motion for reduction of his sentence. After review, we affirm.1 Under § 3582(c)(2), a district court may modify an already incarcerated defendant s term of imprisonment if the defendant s sentence was based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o). 18 U.S.C. § 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1). However, [w]here a retroactively applicable guideline amendment reduces a defendant s base offense level, but does not alter the sentencing range upon which his or her sentence was based, § 3582(c)(2) does not authorize a reduction in sentence. United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008), cert. denied, 129 S. Ct. 965 (2009), and ___ S. Ct. ___, 2009 WL 301854 (U.S. Mar. 9, 2009) (No. 08-8554); see also U.S.S.G. § 1B1.10(a)(2)(B). A reduction is not authorized if the amendment does not lower a defendant s applicable guidelines range because of the operation of another guideline or statutory provision. U.S.S.G. § 1B1.10 cmt. n.1(A). The district court did not err in denying Nettles a § 3582(c)(2) sentence reduction. Nettles s § 3582(c)(2) motion was based on Amendment 706 to the 1 In a § 3582(c)(2) proceeding, we review de novo the district court s legal conclusions regarding the scope of its authority under the Sentencing Guidelines. United States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008). 2 Sentencing Guidelines, which reduced most of the base offense levels in U.S.S.G. § 2D1.1(c) applicable to crack cocaine offenses. See U.S.S.G. App. C, amends. 706, 713. Nettles concedes that he was sentenced as a career offender. Thus, Nettles s offense level was based on U.S.S.G. § 4B1.1, not on U.S.S.G. § 2D1.1(c). This Court concluded in United States v. Moore that a crack cocaine defendant, like Nettles, who was sentenced as a career offender under § 4B1.1 is not eligible for a § 3582(c)(2) sentence reduction based on Amendment 706. See 541 F.3d at 1327-29. Thus, the district court did not have authority to reduce Nettles s sentence under § 3582(c)(2). AFFIRMED. 3
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