FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 14, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-15447

Non-Argument Calendar

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D. C. Docket No. 02-00033-CR-7-UWC-JEO

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROOSEVELT MACK,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Alabama

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(April 14, 2009)

Before DUBINA, HULL and FAY, Circuit Judges.

PER CURIAM:

Roosevelt Mack, a federal prisoner convicted of crack cocaine offenses,
appeals pro se the district court’s denial of his pro se 18 U.S.C. § 3582(c)(2)

motion for a reduced sentence. After review, we affirm.

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Under § 3582(c)(2), a district court may modify the term of imprisonment of

an already incarcerated defendant if the defendant’s sentence is “based on a

sentencing range that has subsequently been lowered by the Sentencing

Commission pursuant to 28 U.S.C. § 994(o).” 18 U.S.C. § 3582(c)(2). However,

“[w]here a retroactively applicable guideline amendment reduces a defendant’s

base offense level, but does not alter the sentencing range upon which his or her

sentence was based, § 3582(c)(2) does not authorize a reduction in sentence.”

United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008), cert. denied, ___ S.

Ct. ___, 2009 WL 301854 (U.S. Mar. 9, 2009); see also U.S.S.G. §

1B1.10(a)(2)(B). Thus, a reduction is not authorized if an applicable amendment

does not lower a defendant’s applicable guideline range “because of the operation

of another guideline or statutory provision (e.g., a statutory mandatory minimum

term of imprisonment).” U.S.S.G. § 1B1.10 cmt. n.1(A).

At Mack’s 2004 sentencing, his initial guidelines range, based on U.S.S.G. §

2D1.1(c)’s drug quantity table, was 292 to 365 months’ imprisonment. However,

because Mack was subject to a statutory mandatory minimum life sentence

“We review de novo a district court’s conclusions about the scope of its legal authority 1

under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d 983, 984 (11th Cir. 2008). 

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pursuant to 21 U.S.C. § 841(b)(1)(A), his guidelines sentence became life

imprisonment. See U.S.S.G. § 5G1.1(b). The district court then granted a

U.S.S.G. § 5K1.1 motion for a downward departure based on Mack’s substantial

assistance, resulting in a guidelines range of 168 to 210 months’ imprisonment.

The district court imposed a 180-month sentence.

In 2008, Mack filed this § 3582(c)(2) motion based on Amendment 706 to

the Sentencing Guidelines, which lowered most of the base offense levels in

U.S.S.G. § 2D1.1(c) applicable to crack cocaine offenses. The district court denied

the § 3582(c)(2) motion, concluding that Mack’s sentencing range of life

imprisonment, which was set based on the statutory mandatory minimum, was not

lowered by Amendment 706. We agree.

Mack’s sentencing range was determined by the statutory mandatory

minimum, not by the quantity of crack cocaine attributed to him under § 2D1.1(c).

Thus, even though Amendment 706 lowered the base offense level for Mack’s

crack cocaine offenses, it did not affect Mack’s sentencing range of life

imprisonment. The fact that Mack received a § 5K1.1 downward departure once

his guidelines range was calculated does not alter this conclusion. See United

States v. Williams, 549 F.3d 1337, 1339-42 (11th Cir. 2008) (concluding that the

district court did not have authority to grant defendant’s § 3582(c)(2) motion

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because Amendment 706 had no effect on his statutory mandatory minimum

sentence, which had become his guidelines range, even though he received a §

5K1.1 downward departure). Because Amendment 706 had no effect on his

sentencing range, Mack was ineligible for a § 3582(c)(2) sentence reduction.

Mack’s arguments regarding the applicability of United States v. Booker,

543 U.S. 220, 125 S. Ct. 738 (2005), are foreclosed by our precedent. See United

States v. Melvin, 556 F.3d 1190, 1192-93 (11th Cir. 2009) (concluding that Booker

does not “prohibit the limitations on a judge’s discretion in reducing a sentence

imposed by § 3582(c)(2) and the applicable policy statement by the Sentencing

Commission”); United States v. Moreno, 421 F.3d 1217, 1220-21 (11th Cir. 2005),

petition for cert. filed, (U.S. Feb. 10, 2009) (No. 08-8664) (concluding that Booker

does not provide an independent basis on which to grant a § 3582(c)(2) motion).

AFFIRMED.

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