USA v. Kirk Mitchell Davila, No. 08-12669 (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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT No. 08-12669 Non-Argument Calendar ________________________ FEB 24, 2009 THOMAS K. KAHN CLERK D. C. Docket No. 96-08004-CR-DTKH UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KIRK MITCHELL DAVILA, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (February 24, 2009) Before BARKETT, HULL and PRYOR, Circuit Judges. PER CURIAM: Kirk Davila, a federal prisoner convicted of a crack-cocaine offense, appeals the district court s ruling on his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). After review, we affirm. Under § 3582, a district court has discretion to reduce the term of imprisonment of an already incarcerated defendant if that defendant has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 944(o). 18 U.S.C. § 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1) (Supp. May 1, 2008). Section 3582(c)(2) requires a sentence reduction to be consistent with the Sentencing Guidelines policy statements, which include U.S.S.G. § 1B1.10. See 18 U.S.C. § 3582(c)(2). Section 1B1.10(b)(2) and its commentary preclude a district court from reducing a defendant s sentence below the new, amended guidelines range if the defendant s original sentence fell within the then-applicable guidelines range. See U.S.S.G. § 1B1.10(b)(2)(A)-(B) & cmt. n.3. Davila s § 3582(c)(2) motion is based on Amendment 706 to the Sentencing Guidelines, which lowered most of the base offense levels under U.S.S.G. § 2D1.1 for crack-cocaine offenses. Davila s original guidelines range was 324 to 405 months imprisonment, and the district court s original 324-month sentence was at the low end of that range. After Amendment 706, Davila s offense level was reduced by two levels, yielding a new guidelines range of 262 to 327 months imprisonment. The district court granted Davila s § 3582(c)(2) motion and 2 reduced Davila s sentence to 262 months imprisonment, at the low end of the new, amended guidelines range. The district court denied Davila s § 3582(c)(2) request to sentence him below that new, amended guidelines range pursuant to United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005) and Kimbrough v. United States, ___ U.S. ___, 128 S. Ct. 558 (2007). On appeal, Davila argues that the district court erred when it failed to apply Booker and treat the new guidelines range and U.S.S.G. § 1B1.10(b)(2) as advisory.1 However, as explained above, § 3582(c)(2) requires a sentence reduction to be consistent with the Sentencing Guidelines policy statements and in turn § 1B1.10(b)(2) and its commentary preclude the reduction in Davila s case. This Court recently held that Booker and Kimbrough do not apply to § 3582(c)(2) proceedings and that Booker and Kimbrough do not prohibit the limitations on a judge s discretion in reducing a sentence imposed by § 3582(c)(2) and the applicable policy statement by the Sentencing Commission. United States v. Melvin, No. 08-13497, ___ F.3d ___, 2009 WL 236053, at **1, 3 (11th Cir. Feb. 3, 2009). Because Davila s original sentence was within the then-applicable guidelines range, U.S.S.G. § 1B1.10(b)(2) and its commentary precluded the 1 In the § 3582(c)(2) context, 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), cert. denied, 77 U.S.L.W. 3398 (U.S. Jan. 12, 2009) (No. 08-7610). We also review de novo questions of statutory interpretation. Id. 3 district court from reducing Davila s sentence below the new, amended guidelines range. AFFIRMED. 4

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