FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 24, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-12952

Non-Argument Calendar

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D. C. Docket No. 03-00041-CR-4-SPM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANGELO BARKER,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Florida

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(April 24, 2009)

Before CARNES, WILSON and FAY, Circuit Judges.

PER CURIAM:
Angelo Barker, through counsel, appeals the district court’s denial of his

motion for a reduced sentence, brought pursuant to 18 U.S.C. § 3582(c)(2). His

motion was based on Amendment 706 to the Guidelines, which reduced certain

base offense levels applicable to crack cocaine. For the reasons set forth below, we

affirm.

I.

Barker pled guilty to possession with intent to distribute more than five

grams of crack cocaine, in violation 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). In

preparing the pre-sentencing investigation report, the probation officer determined

that Barker had a base offense level of 26, pursuant to U.S.S.G. § 2D1.1(a)(3)

and (c)(7). Barker’s total offense level became 25 after the probation officer

applied a 2-level enhancement for obstruction of justice and a 3-level reduction for

acceptance of responsibility. The probation officer determined that Barker had a

criminal history category of III which, when coupled with his offense level of 25,

gave him an applicable guideline range of 70-87 months’ imprisonment. However,

the probation officer found that Barker was subject to the statutory mandatory

minimum penalty of 120 months’ imprisonment under § 841(b)(1)(B), which

became his “guideline sentence,” pursuant to U.S.S.G. § 5G1.1(b).

Before sentencing, the government filed a motion advising the court that

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Barker had provided substantial assistance to the government, entitling him to a

reduction in his sentence under U.S.S.G. § 5K1.1. The court adopted the PSI,

granted the government’s § 5K1.1 motion, and sentenced Barker to 96 months’

imprisonment.

Barker, through counsel, filed the present § 3582(c)(2) motion, asserting that

the court had authority to reduce his sentence based on Amendment 706.

Specifically, he argued that he was eligible for a sentencing reduction because,

“while his guideline sentence may have been the mandatory minimum of 10 years,

his sentencing range has changed from that of 70 to 87 months to 57 to 71

months.”

The district court denied Barker’s motion. The court explained that Barker

was not eligible for a sentencing reduction because “application of the guideline

amendment results in no change to his sentencing range. Defendant was subject to

a statutory mandatory minimum sentence, which determined his sentencing range.

Because Defendant’s sentencing range remains the same under the amended

guidelines, he is not eligible for a reduction.” This appeal followed.

II.

“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. James, 548 F.3d

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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 statements, which

similarly provide, inter alia, that a sentencing reduction is not permitted where 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).

III.

On appeal, Barker repeats the same general argument advanced in his

§ 3582(c)(2) motion, namely, that he was eligible for a sentencing reduction

because Amendment 706 reduced his underlying guideline range. However, this

argument is foreclosed by our decision in United States v. Williams, 549 F.3d 1337

(11th Cir. 2008). In that case, we held that a defendant whose sentence is based on

the statutory mandatory minimum sentence, rather than the base offense level in

§ 2D1.1, and who receives a downward departure is ineligible for a sentencing

reduction under § 3582(c)(2). Id. at 1342 (“Because Williams was subject to a

statutory mandatory minimum that replaced his original sentencing guideline

range, he was not sentenced according to the base offense level in § 2D1.1, even

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taking into account the § 5K1.1 downward departure. He thus would not fall within

the scope of Amendment 706.”). Accordingly, Barker was not eligible for a

sentencing reduction, and we affirm.

AFFIRMED.

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