USA v. Artrone Cheatham, No. 10-12343 (11th Cir. 2010)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 10-12343 NOVEMBER 18, 2010 Non-Argument Calendar JOHN LEY ________________________ CLERK D.C. Docket No. 2:02-cr-00007-MEF-CSC-2 UNITED STATES OF AMERICA, lllllllllllllllllllll Plaintiff-Appellee, versus ARTRONE CHEATHAM, a.k.a. "Moochie", lllllllllllllllllllll Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Alabama ________________________ (November 18, 2010) Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges. PER CURIAM: In 2003, Artrone Cheatham was convicted of conspiracy to possess with intent to distribute 50 grams or more of crack cocaine. In determining Cheatham s sentencing guideline range, the court found that he was responsible for 30 kilograms of crack, which corresponded to a base offense level of 38. After calculating the guideline range as 235 to 293 months imprisonment, the court sentenced Cheatham to 235 months imprisonment. In 2008, Cheatham filed a pro se motion for a reduction in sentence, 18 U.S.C. § 3582(c), arguing that Amendment 706 of the sentencing guidelines lowered the base offense levels for crack offenses. The district court denied the motion, finding that Cheatham was ineligible for a reduction because the amendment had not lowered his base offense level due to the amount of drugs involved. Cheatham now appeals. We review de novo a district court s conclusions about the scope of its legal authority under 18 U.S.C. § 3582(c)(2). United States v. Davis, 587 F.3d 1300, 1303 (11th Cir. 2009), cert. denied, 130 S.Ct. 2129 (2010). A district court s decision to grant or deny a sentence reduction is reviewed only for an abuse of discretion. Id. A district court may modify a defendant s term of imprisonment where the Sentencing Commission has subsequently lowered the sentencing range upon which the defendant s sentence was based as long as the reduction is consistent 2 with the applicable policy statements issued by the Commission. 18 U.S.C. § 3582(c)(2). A reduction in the term of imprisonment is not consistent with applicable policy statements and is, therefore, not authorized under § 3582(c)(2) if the retroactive amendment does not have the effect of lowering the defendant s applicable guideline range. U.S.S.G. § 1B1.10(a)(2)(B). Amendment 706, which applies retroactively, provides for a two-level reduction in the base offense level assigned to certain amounts of crack cocaine. U.S.S.G. App. C, Amend. 706; U.S.S.G. § 1B1.10(c). Before Amendment 706 took effect, a defendant received a base offense level of 38 if he was held accountable for 1.5 kilograms or more of crack cocaine; under the amended version of the guidelines, a base offense level of 38 applies to a defendant held accountable for 4.5 kilograms or more of crack cocaine. See Davis, 587 F.3d at 1303 (citing U.S.S.G. App. C, Amends. 706, 711, 713; U.S.S.G. § 2D1.1(c)(1)). Here, the district court determined that Cheatham was not entitled to relief. We agree. First, when the district court originally determined Cheatham s sentence, it held him responsible for 30 kilograms of crack. Although Cheatham continues to dispute this quantity, we cannot revisit the district court s determination of the amount of drugs for which Cheatham was held responsible.1 1 We note that Cheatham failed to raise this argument in his original appeal. 3 See Davis, 587 F.3d at 1303 (explaining that in a § 3582(c) resentencing proceeding, the district court must maintain all original sentencing determinations apart from the original Guidelines range ) (citation and quotation marks omitted). Second, because Cheatham was held responsible for more than 4.5 kilograms of crack, his base offense level remained 38 even under the amended version of § 2D1.1(c)(1). Thus, Cheatham s sentence was not based on a range subsequently lowered by Amendment 706, and the district court properly denied Cheatham s § 3582(c) motion. AFFIRMED. 4
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