FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

May 7, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-14459

Non-Argument Calendar

________________________

D. C. Docket No. 92-00369-CR-T-26-MAP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EARNEST EUGENE CHERRY,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(May 7, 2009)

Before BIRCH, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
Earnest Cherry, a federal prisoner who was convicted of a crack cocaine

offense, appeals through counsel, the denial of his pro se motion to reduce his

sentence, filed pursuant to 18 U.S.C. § 3582(c)(2) and the denial of his motion for

reconsideration. Cherry’s motion was based on Amendment 706 to U.S.S.G.

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§ 2D1.1, which lowered the base offense levels applicable to crack cocaine

convictions. Because Cherry received a 240-month statutory minimum sentence

under 21 U.S.C. § 841(b)(1)(A), his sentence was based on something other than

the offense level calculation under § 2D1.1. Consequently, the district court did

not err in finding that Cherry was not eligible for a sentence reduction under

§ 3582(c)(2), because his guideline range was not lowered by the Amendment.

The court properly rejected his arguments that: (1) his minimum mandatory

sentence was invalid because it was based on a drug quantity not charged in the

indictment or found by the jury, in violation of Apprendi; and, (2) Booker and

2 3

Kimbrough

4 made the sentencing guidelines advisory. Accordingly, we AFFIRM

 After Cherry filed his pro se § 3582(c)(2) motion, the district court appointed a federal 1

public defender to represent Cherry. R1-198, 199.

 Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). 2

 United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). 3

 Kimbrough v. United States, 552 U.S. __, 128 S. Ct. 558 (2007). 4

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the district court’s denial of Cherry’s § 3582(c)(2) motion and the denial of his

motion for reconsideration.

I. BACKGROUND

As noted above, this appeal concerns the denial of Cherry’s motion for a

reduced sentence under § 3582(c)(2). We begin by reviewing the relevant facts

regarding his underlying criminal conviction and sentence.

In January 1993, a federal grand jury returned a first superceding indictment

charging Cherry with conspiracy to possess with intent to distribute cocaine base,

in violation of 21 U.S.C. § 846 (Count One), possession with intent to distribute

cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Count Three), use of a firearm

in a drug trafficking offense, in violation of 18 U.S.C. § 924(c) (Count Four), and

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)

(Count Five). R1-198 at 63-65. Prior to Cherry’s trial, the government filed a

notice stating that, based on Cherry’s prior drug conviction, it would seek a

sentencing enhancement under 21 U.S.C. § 851(a)(1). A jury found Cherry guilty

on all counts of the indictment.

Pursuant to U.S.S.G. § 2D1.1(a)(3) (Nov. 1992), the probation officer set the

base and total offense level at 32, because Cherry had distributed more than fifty

grams, but less than 150 grams of crack cocaine. Specifically, the probation officer

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found that Cherry’s involvement was limited to a transaction that concerned 80.5

grams of crack cocaine. Based on the total offense level and a criminal history

category of IV, the calculated guideline range was 168 to 210 months of

imprisonment. However, because a mandatory minimum term of 240 months of

imprisonment applied under 21 U.S.C. § 841(b)(1)(A), due to Cherry’s prior felony

drug offense, the probation office determined that 240 months was the applicable

minimum guideline sentence. Cherry was also subject to a sixty-month

consecutive sentence on Count Four pursuant to 18 U.S.C. § 924(c).

At sentencing, among other objections, Cherry argued that there was no

evidentiary basis for holding him responsible for 80.5 grams, considering the

amount of crack cocaine that was reasonably foreseeable in connection with

Cherry’s activities and Cherry’s ignorance of the quantity involved. R1-198 at 70-

71. The court overruled the objection and adopted the PSI’s factual statements and

guideline calculations. Id. at 77-78. The court sentenced Cherry to the mandatory

minimum term of 240 months of imprisonment for Counts One and Three, and a

consecutive sixty-month term of imprisonment for Count Four. Id. at 84. Cherry

5

 Cherry was not sentenced separately for Count Five because it was treated as a specific 5

offense characteristic applicable to Counts One and Three. A two-level enhancement, however,

was not applied because he was also convicted under 18 U.S.C. § 924(c) (Count Four). 

4
appealed his sentence to us and we affirmed. United States v. Cherry, 40 F.3d 389

(11th Cir. 2004).

In March 2008, Cherry filed the present motion to reduce his sentence, under

18 U.S.C. § 3582(c)(2), after which the district court appointed a federal public

defender to represent Cherry. The district court also ordered the probation office to

prepare a supplemental presentence investigation report (the “2008 PSI”). R1-198,

199. In the 2008 PSI, the probation office concluded that § 3582(c)(2) did not

authorize the court to modify Cherry’s sentence because the amendment did not

affect his guideline range, as he was subject to a 240-month statutory minimum

sentence. In its court-ordered response, the government argued that the district

court should deny Cherry’s § 3582(c)(2) motion because the statutory mandatory

minimum sentence prevented the amendment from reducing Cherry’s guidelines

range. R1-202 at 2. The government noted that in a § 3582(c)(2) proceeding all

sentencing determinations are to remain unchanged. Id. at 3. The government also

argued that a court granting a § 3582(c)(2) motion may not apply the sentencing

guidelines in an advisory fashion, and, even if the guidelines were advisory,

Cherry’s sentence would be unchanged because the court is still bound by the

statutory mandatory minimums after Booker. Id. at 3-4.

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In his response, Cherry, through counsel, argued that his mandatory

minimum sentence was invalid, because no drug quantity was ever alleged or

pledged to the jury, in violation of Apprendi. R1-207 at 3-4. Cherry recognized

that Apprendi had not been held to be retroactive, but argued that the § 3582(c)(2)

proceeding renders the judgment no longer final. Id. at 6. Cherry argued that,

because he cannot be subjected to the statutory minimum, the amendment lowered

his guideline range from 168-210 months to 135-168 months. Id. at 2, 6-7. Cherry

also argued that under Kimbrough the court could consider the treatment disparity

between crack and powder cocaine in determining a reasonable sentence. Id. at 8.

The district court found that because Cherry was subject to a statutory

minimum term of 240-months of imprisonment, Amendment 706 did not lower his

sentencing guideline range. R1-208 at 1. Accordingly, the district court found that

§ 3582(c)(2) did not authorize the court to reduce Cherry’s sentence. Id. at 1-2.

Cherry filed a motion to reconsider asking the court to address his arguments

concerning the invalidity of his minimum mandatory sentence and Apprendi. R1-

209. In denying this motion, the court rejected Cherry’s argument that Apprendi

was applicable because § 3582(c)(2) rendered his judgment no longer final for the

limited purpose of imposing a reduced sentence. R1-210 at 1-2. The court found

Cherry’s argument to be contrary our circuit precedent as established in United

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States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005) (per curiam) (holding that

§ 3582 only provides discretion to reduce a sentence following the lowering of a

sentencing range by the Sentencing Commission); United States v. Bravo, 203

F.3d 778, 781 (11th Cir. 2000) (holding that a sentencing adjustment under § 3582

does not constitute a de novo resentencing and all original sentencing

determinations remain unchanged except for the guideline range amended after the

original sentencing); and United States v. White, 251 Fed. Appx. 658, 659 (11th

Cir. 2007) (per curiam) (holding that because Apprendi is not applicable on

collateral review, the court did not err in using the defendant’s original sentence as

the starting point for granting the government’s motion to reduce his sentence for

substantial assistance). R1-210 at 2.

II. DISCUSSION

On appeal, Cherry argues that he was erroneously subjected to a mandatory

minimum of 240-months of imprisonment because 21 U.S.C. § 841(b)(1)(C),

under which the jury convicted him, indicates no minimum mandatory sentence

and only a 360-month maximum sentence. He asserts that the court had the

authority to correct his illegal sentence because, pursuant to § 3582(c)(2), his

judgment was no longer final for the purpose of reducing his sentence. Cherry also

contends that his Fifth and Sixth Amendment rights to have facts that are essential

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to his sentence charged by indictment and found by a jury beyond a reasonable

doubt were violated because his sentence was based on facts that were neither

charged by indictment nor found by a jury. He posits, however, that his case does

not turn on the application of Apprendi because he was erroneously subjected to a

mandatory minimum sentence. Cherry also argues that (1) under Booker and

Kimbrough, the sentencing guidelines are advisory in all contexts, (2) his sentence

was greater than necessary to satisfy the purposes of sentencing – noting that the

court failed to consider the § 3553(a) factors and his post-sentencing conduct – and

(3) based on our ruling in United States v. Stratton, 519 F.3d 1305 (11th Cir. 2008)

(per curiam), the district court erred in concluding it lacked authority to consider

the crack/powder sentencing disparity.

Cherry also argues that he is not asking to apply Apprendi and Booker

retroactively, because he is not challenging his 1993 sentence; instead, he invites

us to apply Apprendi and Booker to the district court’s 2008 sentence. He

contends that his sentence was unconstitutional because he received a 240-month

sentence in 2008, based on judge-made findings, where no drug quantity was

alleged with respect to his conviction under 21 U.S.C. § 841(a)(1). Cherry further

argues that his sentence was unreasonable in light of the § 3553(a) factors and

Kimbrough.

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“We review a district court’s decision whether to reduce a sentence pursuant

to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing

guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343

(11th Cir. 2003). However, in the § 3582(c)(2) context, “we review de novo the

district court’s legal conclusions regarding the scope of its authority under the

Sentencing Guidelines.” United States v. White, 305 F.3d 1264, 1267 (11th Cir.

2002).

Although a district court generally cannot modify a term of imprisonment

once it has been imposed, one exception is for “a defendant who 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). In such a case, “the court may reduce the term of imprisonment,

after considering the factors set forth in [18 U.S.C. §] 3553(a) to the extent that

they are applicable, if such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission.” Id.

Amendment 706, which reduced the offense levels in crack cocaine cases

calculated pursuant to § 2D1.1(c) by two levels, was made retroactive effective 3

March 2008, by incorporation into § 1B1.10(c). See U.S.S.G. App. C, Amend.

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713; U.S.S.G. § 1B1.10(c). According to the Sentencing Commission, a reduction

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of a term of imprisonment would be inconsistent with its policy statements—and

is, therefore, not authorized under § 3582(c)(2)—if the retroactive amendment did

“not have the effect of lowering the defendant’s applicable guideline range.”

U.S.S.G. § 1B1.10(a)(2)(B). Accordingly, we have held that a defendant whose

original sentencing range was based on something other than § 2D1.1 is precluded

from receiving a sentence reduction under Amendment 706, since the amendment

would not lower his applicable guidelines range. See United States v. Moore, 541

F.3d 1323, 1325 (11th Cir. 2008) (denying reduction for defendant subject to

career offender guideline), cert. denied, McFadden v. United States, No. 08-7610

(U.S. Jan. 12, 2009).

A. Applicability of the 240-Month Statutory Mandatory Minimum

Under 21 U.S.C. § 841(b)(1)(A), any person who possesses with intent to

distribute fifty grams or more of cocaine base “after a prior conviction for a felony

drug offense has become final, . . . shall be sentenced to a term of imprisonment

which may not be less than 20 years[.]” 21 U.S.C. § 841(b)(1)(A)(viii). In

Apprendi, the Court held that any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury and proved beyond

 Unless otherwise indicated, all citations are to the version in the 1 November 2008 6

Guidelines Manual.

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a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63. Apprendi is

not retroactively applicable. McCoy v. United States, 266 F.3d 1245, 1258 (11th

Cir. 2001) (in the context of collateral review). A § 3582(c)(2) motion to reduce a

sentence does not provide the basis for de novo resentencing. See Moreno, 421

F.3d at 1220; U.S.S.G. § 1B1.10(a)(3) (noting that proceedings “do not constitute a

full resentencing of the defendant”). A district court should leave intact its

previous factual decisions from the sentencing hearing when deciding whether to

reduce a defendant’s sentence. See United States v. Cothran, 106 F.3d 1560, 1563

(11th Cir. 1997) (holding the district court correctly declined to re-examine the

number of marijuana plants involved in the drug offense).

At Cherry’s original sentencing, the district court found that Cherry was

responsible for 80.5 grams of cocaine base, and it is uncontested that Cherry was

previously convicted of a felony drug offense. R1-198 at 77-78. This previous

felony drug offense, in turn, served to enhance Cherry’s statutory mandatory

minimum sentence to 240-months of imprisonment under § 841(b)(1)(A) (for

offenses involving more than fifty grams of crack cocaine, requiring that the 120-

month minimum be increased to a 240-month minimum if the offense was

committed after a conviction for a prior felony drug offense). The district court,

considering Cherry’s § 3582(c)(2) motion, did not have the authority under

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§ 3582(c)(2) to reexamine the amount of drugs for which Cherry was held

responsible. Cothran, 106 F.3d at 1563. The court also did not have the authority

to reexamine the amount based on Apprendi because the court could not apply

Apprendi retroactively for the purpose of disturbing factual findings it was

required to leave intact. Id.; see also McCoy, 266 F.3d at 1258. Cherry argues that

he is not seeking to apply Apprendi retroactively because his judgment was no

longer final for the purpose of resentencing and instead asserts that he seeks to

apply Apprendi to the 2008 sentence imposed by the district court. These

arguments have no merit because Cherry was not eligible for resentencing under

§ 3582(c)(2). As a result, Cherry was never resentenced, so there is no

2008 sentence to which to apply Apprendi. Because Apprendi is a Supreme Court

decision, as opposed to a retroactively applicable guideline amendment by the

Sentencing Commission, Apprendi cannot serve as an independent basis for a

§ 3582(c)(2) motion. Cf. Moreno, 421 F.3d at 1220. Consequently, the district

court did not err in finding that the 240-month statutory mandatory minimum

sentence under 21 U.S.C. § 841(b)(1)(A) was still applicable to Cherry.

B. Statutory Minimum Sentences and Eligibility for Relief Under § 3582(c)(2)

Where the statutory minimum sentence exceeds the top end of the applicable

guideline range, the statutory minimum becomes the guideline. U.S.S.G.

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§ 5G1.1(b). The Sentencing Commission’s application notes indicate that the

operation of “a statutory mandatory minimum term of imprisonment” would

prevent an amendment from “hav[ing] the effect of lowering the defendant’s

applicable guideline range.” See U.S.S.G. § 1B1.10, comment. (n.1(A)).

Consequently, a defendant who is subject to a statutory mandatory minimum that

replaced the sentencing guideline range is not eligible for a sentencing reduction,

because the range was based on something other than § 2D1.1. See United States

v. Williams, 549 F.3d 1337, 1341-42 (11th Cir. 2008) (per curiam) (holding that

defendant sentenced to statutory minimum was not eligible for a sentence

reduction, where even the court at the original sentencing had granted the

government’s § 5K1.1 motion to sentence below the mandatory minimum).

The district court did not err in finding that Cherry was not eligible for a

sentence reduction under § 3582(c)(2). Cherry’s sentencing guideline range was

not affected by Amendment 706, due to being sentenced to a 240-month

mandatory minimum sentence under § 841(b)(1)(A), rather than the guideline

range established by § 2D1.1. See id. Although the applicable guideline range

under § 2D1.1 was 168 to 210 months, § 841(b)(1)(A) required Cherry to be

sentenced to not less than 240 months. 21 U.S.C. § 841(b)(1)(A). Thus, pursuant

to U.S.S.G. § 5G1.1(b), Cherry’s applicable guideline range effectively became

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240 months. This range was not altered by Amendment 706, because that

amendment only applies to sentences imposed under § 2D1.1, see Moore, 541 F.3d

at 1327, and does not apply to sentences imposed under § 841(b)(1)(A), see

Williams, 549 F.3d at 1341-42.

C. Applicability of Booker, Kimbrough and the § 3553(a) Factors

To the extent Cherry argues that the advisory nature of the sentencing

guidelines under Booker and Kimbrough provide an independent basis to obtain

3582(c)(2) relief, our precedent forecloses his argument. In United States v.

Melvin, 556 F.3d 1190, 1191 (11th Cir.) (per curiam), petition for cert. filed (U.S

Feb. 10, 2009) (No. 08-8664), we held that Booker and Kimbrough v. United

States, 552 U.S. , 128 S. Ct. 558 (2007), “do not apply to § 3582(c)(2)

proceedings” and 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.” Melvin, 556 F.3d at 1190. We specifically held that the district

court was bound by U.S.S.G. § 1B1.10(b)(2)(A)’s limitation on the court’s

discretion to impose a sentence below the low end of t he defendant’s amended

guideline range. Id. at 1192-94. Cherry’s argument that under Stratton, district

courts always have authority to consider the crack/powder sentencing disparity is

not persuasive because Stratton concerned the court’s authority on direct appeal to

14
consider the crack/powder sentencing disparity and did not address the court’s

more limited authority to modify sentences under § 3582(c)(2).

Finally, because Cherry is not entitled to resentencing under § 3582(c)(2),

his arguments concerning the reasonableness of his sentence seeking to apply

Booker, Kimbrough, and the § 3553(a) factors, at resentencing are academic. See

United States v. James, 548 F.3d 983, 986 (11th Cir. 2008) (per curiam) (holding

the defendant’s arguments for the application of Booker and Kimbrough at

resentencing were “academic” because the defendant was not entitled to

resentencing under § 3582(c)(2)).

III. CONCLUSION

As explained above, the district court did not err in finding that § 3582(c)(2)

did not authorize the court to reduce Cherry’s sentence. Accordingly, we

AFFIRM the district court’s denial of Cherry’s motion.

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