FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 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[DO NOT PUBLISH]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. 08-14715

Non-Argument Calendar

________________________

D. C. Docket No. 97-00089-CR-ORL-19-DAB

UNITED STATES OF AMERICA,

Plaintiffs-Appellee,

versus

ELAINAISE MERVIL,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(April 6, 2009)

Before TJOFLAT, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

On August 20, 1997, a Middle District of Florida jury found Elainaise

Mervil guilty of conspiring to distribute cocaine base and powder cocaine, in
violation of 21 U.S.C. § 846 (Count 1), and of possessing with the intent to

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

(Count 2). At sentencing, the district court held Mervil accountable for 39.62

kilograms of cocaine base and 1.03 kilograms of cocaine powder, which was the

equivalent of 773,440 kilograms of marijuana. This yielded a Guidelines base

offense level of 38 and coupled with a criminal history category of I a sentence

range calling for a term of imprisonment (on each count) of 235 to 293 months.

The court sentenced Mervil to concurrent prison terms of 240 months. She did not

appeal.

After unsuccessfully moving the district court on three occasions to reduce

her sentences pursuant to 18 U.S.C. § 3582(c)(2), Mervil, in December 2007, once

again invoked the statute in an effort to have her sentences reduced. This time she

based her motion on Amendments 706 and 711 to the Sentencing Guidelines,

which reduced her base offense level from 38 to 36, and argued that a reduction

would be consistent with the sentencing factors of 18 U.S.C. § 3553(a), the

Supreme Court’s decisions in United States v. Booker, 543 U.S. 220, 125 S.Ct.

738, 160 L.Ed.2d 621 (2005), and Kimbrough v. United States, 552 U.S. ___, 128

S.Ct. 558, 169 L.Ed.2d 481 (2007), and her post-sentencing rehabilitation.

Under § 3582(c)(2), a district court may not reduce a defendant’s term of

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imprisonment unless that defendant has been sentenced pursuant to a Guidelines

sentence range “that has subsequently been lowered by the Sentencing

Commission.” 18 U.S.C. § 3582(c)(2). Booker, 543 U.S. at 245, 258-60, 125

S.Ct. at 756-67, 764-65 (rendering the Guidelines advisory), and Kimbrough, 552

U.S. at ___, 128 S.Ct. at 575 (clarifying that district courts possess the authority to

deviate from the 100-to-1 crack-to-powder cocaine ratio during sentencing), do not

provide independent jurisdictional bases for relief under § 3582(c)(2). United

States v. Melvin, No. 08-13497, manuscript op. at 7 (11th Cir. February 3, 2009).

In addressing a § 3582(c)(2) motion, the district court must engage in a twopart analysis: (1) by recalculating the sentence based on the amendment, “leav[ing]

all other guideline application decisions unaffected;” and (2) by exercising its

discretion, based on the factors listed in § 3553(a), to impose a new sentence or to

retain the original sentence. U.S.S.G. § 1B1.10(b)(1); and see United States v.

Vautier, 144 F.3d 756, 760 (11th Cir. 1998). In analyzing these factors, the district

court may also consider the post-sentencing conduct of the defendant. U.S.S.G.

§ 1B1.10, comment. (n.1(B)(iii)). This requirement, however, “is triggered only by

an amendment . . . that lowers the applicable guideline range.” U.S.S.G. § 1B1.10,

comment. (n.1(A)).

Amendment 706, retroactive as of March 3, 2008, provided for a two-level

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reduction in the base offense level for certain crack cocaine offenses. See

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U.S.S.G. App. C, Amends. 706, 713. It also altered Application Note 10(D) of the

Commentary to U.S.S.G. § 2D1.1 to change the method of calculating the offense

level for offenses involving cocaine base and other types of drugs. See U.S.S.G.

App. C, Amend. 706. In particular, it instructed district courts to: (1) determine the

base offense level for the other substance; (2) apply that base offense level to a

“marijuana equivalency” table and convert the cocaine base into marijuana; (3)

convert the other substance into marijuana; and (4) add the marijuana quantities

together to determine the combined base offense level. Id.

Amendment 711 reversed Amendment 706 on this point, instructing courts

to: (1) determine the base offense level for the amount of cocaine base involved;

(2) apply that base offense level to a “marijuana equivalency” table and convert the

cocaine base into marijuana; (3) determine the marijuana equivalency for the other

substance; and (4) add together all of the marijuana amounts and determine the

combined base offense level. See U.S.S.G. App. C, Amend. 711.

Finally, Amendment 715, which came into effect on May 1, 2008 – after

Mervil filed her § 3582(c)(2) motion but before the district court ruled on it – and

While Mervil filed her motion before Amendments 706 and 711 became retroactive, 1

jurisdiction was proper in the district court because it ruled on the motion after March 3, 2008. See

United States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008), cert. denied, 129 S.Ct. 965 (2009),

and pet. for cert. filed, (U.S. Feb. 2, 2009) (No. 08-8554).

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which the district court relied on, undid Amendment 711, imposing the following

method, instead: (1) determine the marijuana equivalency for all of the drug

amounts involved using the traditional conversion method; (2) subtract two levels

from that amount; and (3) determine the base offense level for this altered amount

of marijuana. U.S.S.G. App. C, Amendment 715. A two-level reduction would not

apply, however, if “the offense involved 4.5 kilograms or more . . . of cocaine

base.” See U.S.S.G. § 2D1.1, comment. (n.10(D)(ii)(I)).

Here, the district court properly found that it lacked authority to reduce

Mervil’s sentences under the amended Guidelines. Based on the 1.03 kilograms of

powder cocaine and 39.62 kilograms of cocaine base attributed to Mervil, her base

offense level and adjusted offense levels would remain 38, her criminal history

category would continue to be I, and her guideline range would remain at 235 to

293 months’ imprisonment.

In addition, because the retroactive Guidelines amendments provide Melvin

no relief, her arguments under Booker, Kimbrough, and § 3553(a) necessarily fail.

AFFIRMED.

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