FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCTOBER 19, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-12162

Non-Argument Calendar

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D. C. Docket No. 97-00024-CR-CB

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDDIE ROOSEVELT HANDS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Alabama

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(October 19, 2009)

Before TJOFLAT, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

In United States v. Hands, 45 Fed.Appx. 876 (Table) (11 Cir. 2002), we

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affirmed appellant’s convictions for conspiracy to distribute and to possess with

intent to distribute powder cocaine and cocaine base, Count One, and for

distribution and possession with intent to distribute cocaine, Count Two. We also

affirmed appellant’s concurrent sentences on the respective counts: imprisonment

for life and for 240 months.

In January 2009, appellant moved the district court under 18 U.S.C. §

3582(c)(2) for a reduction of the Count One sentence pursuant to Amendment 706

of the Sentencing Guidelines. When the court sentenced appellant on Count One,

the Guidelines prescribed a sentence range of life imprisonment. When the court

recalculated the Count One sentence range pursuant to Amendment 706, it

concluded that the range should be 360 months to life imprisonment. The

Government agreed, but argued that, given the severity of appellant’s criminal

conduct, the court should adhere to the life sentence previously imposed.

Rejecting appellant’s request for a sentence below the new sentence range, the

court resentenced appellant on Count One to a prison term of 360 months, to run

concurrently with the 240 months’ sentence on Count Two. He now appeals the

court’s decision.

In his brief to us, appellant argues that the district court erred, under United

States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), in treating

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the Guidelines, as amended, as mandatory, and, contrary to the Court’s decision in

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in

considering facts not found by the jury in fashioning the Count One sentence.

Had the court not considered those facts, it would have concluded that the

maximum sentence it could have imposed on Count One was 240 months’

imprisonment, as prescribed by 21 U.S.C. § 841(b)(1)(C). The court also erred in

failing properly to take into account the sentencing factors of 18 U.S.C. § 3553(a),

in applying the law in effect at the time of his offenses rather than the law in effect

at the time of resentencing, and in failing to consider the sentencing disparity

between crack and powder cocaine as required by Kimbrough v. United States, 552

U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).

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“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. Jones, 548 F.3d

1366, 1368 (11th Cir. 2008), cert. denied 129 S.Ct. 1657 (2009). “We review a

district court’s decision whether to reduce a sentence pursuant to 18 U.S.C.

§ 3582(c)(2) for an abuse of discretion.” United States v. Smith, 568 F.3d 923,

926 (11th Cir. 2009). A district court may modify a sentence of imprisonment

 Appellant’s reply brief raises several issues not presented in his initial brief. United 1

States v. Levy, 379 F.3d 1241, 1244 (11th Cir. 2004).

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based on a sentence range lowered by the Sentencing Commission following the

imposition of that sentence. 18 U.S.C. § 3582(c)(2). To do so, “the district court

must recalculate the defendant’s guideline sentencing range based upon the

relevant amendment to the Sentencing Guidelines.” Smith, 568 F.3d at 927.

However, “none of the other guideline determinations made during the original

sentencing may be reconsidered or altered.” Id. “Booker and Kimbrough do not

apply to § 3582(c)(2) proceedings.” United States v. Melvin, 556 F.3d 1190, 1190

(11th Cir.), cert. denied, 129 S.Ct. 2382 (2009). Therefore, the district court may

not sentence a defendant below the amended Guidelines sentence range if the

defendant was originally sentenced within the Guidelines sentence range. Smith,

568 F.3d at 928; United States v. Douglas, __ F.3d __, __, 09-10818 slip op. at

3286 (11th Cir. July 29, 2009).

The district court lacked the authority in this § 3582(c)(2) proceeding to

consider factors beyond those implicated by Amendment 706 and/or to resentence

appellant to a prison term below that prescribed by the amended Guidelines

sentence range. Appellant’s new sentence on Count One is, accordingly,

AFFIRMED.

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