FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 6, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-11533

Non-Argument Calendar

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D. C. Docket No. 93-00121-CR-ORL-18-DAB

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TERRY GRAHAM,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(August 6, 2009)

Before BIRCH, HULL and FAY, Circuit Judges.

PER CURIAM:
Terry Graham, through counsel, appeals the district court’s order granting in

part his motion for a sentencing reduction, pursuant to 18 U.S.C. § 3582(c)(2). For

the reasons set forth below, we affirm.

I.

In 1993, a jury found Graham guilty of conspiracy to possess with intent to

distribute crack cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and

(b)(1)(A)(iii). In preparing a pre-sentence investigation report (“PSI”), the

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probation officer determined that Graham had a base offense level of 36 based on

the drug quantity for which he was held accountable. The probation officer also

applied a two-level enhancement for obstruction of justice, which ultimately gave

Graham an offense level of 38. The probation officer determined that Graham had

a criminal history category of IV, which, when combined with his offense level of

38, produced an applicable guideline range of 324 to 405 months’ imprisonment.

The district court sentenced Graham to the low end of that range.

In January 2009, the district court sua sponte appointed Graham counsel and

directed the parties to discuss the applicability of Amendment 706. In response,

Graham’s appointed counsel argued, inter alia, that Graham was eligible for a

sentencing reduction under Amendment 706, his amended guideline range was 262

Notably, § 841(b)(1)(A)(iii) provides for a statutory maximum penalty of life 1

imprisonment. 21 U.S.C. § 841(b)(1)(A).

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to 327 months’ imprisonment, and the court should re-sentence him below the

amended guideline range in light of the 18 U.S.C. § 3553(a) factors and United

States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed. 621 (2005), and its

progeny. In addition, and relying on Apprendi v. New Jersey, 530 U.S. 466, 120

S.Ct. 2348, 147 L.Ed.2d 435 (2000), counsel argued that, because the jury did not

make any specific drug-quantity findings, his applicable statutory maximum was

240 months’ imprisonment, pursuant to 21 U.S.C. § 841(b)(1)(C), which therefore

became his guideline sentence under U.S.S.G. § 5G1.1(a).

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The district court agreed that Graham was eligible for a sentencing reduction

and that, after reducing his offense level from 38 to 36, his amended guideline

range was 262 to 327 months’ imprisonment. However, the district court rejected

his Apprendi argument, finding that it was authorized under § 3582(c)(2) only to

substitute the two-level reduction in Amendment 706. The court then considered

the § 3553(a) factors and reduced Graham’s sentence to the low end of the

amended guideline range.

II.

“We review de novo a district court’s conclusions about the scope of its

See U.S.S.G. § 5G1.1(a) (“Where the statutorily authorized maximum sentence is less than 2

the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall

be the guideline sentence.”).

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legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d

983, 984 (11th Cir. 2008). Under § 3582(c)(2), a district court may modify a

defendant’s term of imprisonment where he “has been sentenced to a term of

imprisonment based on a sentencing range that has subsequently been lowered by

the Sentencing Commission . . . .” 18 U.S.C. § 3582(c)(2). Any such reduction

must also be consistent with the Commission’s applicable policy statement in

U.S.S.G. § 1B1.10. See id.

III.

In this case, the district court granted in part Graham’s motion for a

sentencing reduction, re-sentencing him to the low-end of the amended guideline

range. Nonetheless, Graham contends on appeal that the court should have

imposed an even greater reduction for two general reasons. First, Graham repeats

his Apprendi argument that, because the jury never made specific drug-quantity

findings, the applicable statutory maximum penalty was 240 months’

imprisonment, pursuant to 21 U.S.C. § 841(b)(1)(C), which therefore became his

guideline sentence under U.S.S.G. § 5G1.1(a). However, the district court

correctly found that it was not authorized to revisit these calculations in the

§ 3582(c)(2) proceeding. U.S.S.G. § 1B1.10(b)(1) (“[T]he court shall substitute

only the amendments listed in subsection (c) for the corresponding guideline

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provisions that were applied when the defendant was sentenced and shall leave all

other guideline application decisions unaffected.”); see United States v. Melvin,

556 F.3d 1190, 1190 (11th Cir.) (“hold[ing] that a district court is bound by the

limitations on its discretion imposed by § 3582(c)(2) and the applicable policy

statements by the Sentencing Commission”) (emphasis added), cert. denied, 129

S.Ct. 2382 (2009). Second, Graham generally relies on Booker, its progeny, and

the § 3553(a) factors, but such reliance is foreclosed by our case law. See Melvin,

556 F.3d at 1192-94 (holding that, despite Booker, the district court was not

authorized to reduce the defendant’s sentence below the low end of the amended

guideline range). Accordingly, we affirm.

AFFIRMED.

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