FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 SEPTEMBER 10, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-11899

Non-Argument Calendar

________________________

D. C. Docket No. 92-00363-CR-T-23-MAP

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

THOMAS COLEMAN, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(September 10, 2008)

Before BIRCH, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
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Thomas Coleman, a federal prisoner convicted of a crack cocaine offense,

appeals pro se the district court’s denial of his 18 U.S.C. § 3582 motion for

reduction of sentence based on an amendment to U.S.S.G. § 2D1.1 that lowered the

base offense levels applicable to crack cocaine offenses. Because Coleman was

sentenced to an applicable statutory mandatory minimum term of imprisonment,

resulting in a sentence that ultimately was based on something other than the

offense level calculation under § 2D1.1, he was precluded from receiving a

sentence reduction under § 3582. Accordingly, we AFFIRM the district court’s

denial of the motion.

I. BACKGROUND

In November of 1992, Coleman was indicted by a federal grand jury on two

counts of distributing, and possessing with the intent to distribute, five grams or

more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (Counts One and Two)

R1-2. Prior to Coleman’s trial, the government filed an information, pursuant to

21 U.S.C. § 851, giving notice that, based on Coleman’s prior state conviction on

charges of selling, distributing, and possessing dangerous drugs, it would seek the

mandatory minimum term of imprisonment of 20 years on Counts One and Two,

under § 841(b)(1)(A)(ii). R1-12. In March of 1993, Coleman was convicted by a

jury on both counts of the indictment. R1-44.
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The presentence investigation report (“PSI”) held Coleman liable for 130

grams of crack cocaine, resulting in a base offense level of 32. PSI ¶ 12. Based on

a total offense level of 30, and a criminal history category of III, the calculated

guideline range was 121 to 151 months’ imprisonment. Id. ¶¶ 19, 32, 45. 

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

applied as a result of Coleman’s prior felony drug conviction, this was determined

to be the applicable guideline sentence. Id. at ¶ 45. In accordance with the

applicable mandatory minimum, Coleman was sentenced to 240 months’

imprisonment. R1-80.

On 22 January 2008, Coleman filed the instant § 3582 motion, seeking a

modification of his imposed term of imprisonment. R1-99. He asserted that he

was eligible for a reduction in his sentence based on Amendment 706, which

lowered the offense levels in crack cocaine cases by two levels. Id. at 2. He further

contended that the district court was required to re-sentence him in accordance

with the two-level offense level reduction and consider the 18 U.S.C. § 3553(a)

factors in imposing an appropriate amended sentence. Id. at 3. The government

responded that the motion was premature, as the amendment would not become

effective until 3 March 2008. R1-101.
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The district court denied Coleman’s motion, finding that the mandatory

minimum sentence imposed was greater than the applicable guideline range, and,

therefore, Coleman was not eligible for a reduction. R1-104. Coleman filed a

motion for reconsideration, arguing that, “[o]nce the authority to re-visit the

sentence has been triggered,” the court was required to ensure that his amended

sentence was consistent with the § 3553(a) factors and the Sentencing

Commission’s policy statements, which were advisory only. R1-105 at 1-2. He

contended that, pursuant to a § 3582 re-sentencing, the district court first must

determine what the guideline sentence would have been if the amended guidelines

applied, and then the court must determine whether to exercise its discretion in

consideration of “all relevant statutory sentencing factors that exist at the time of

re-sentencing.” Id. at 2-3. The district court summarily denied Coleman’s motion

for reconsideration for the reasons stated in its earlier order. R1-106. 

II. DISCUSSION

On appeal, Coleman contends that, in the context of a § 3582(c)(2) resentencing, he can seek relief from the mandatory minimum sentence that was

applied to him, through 18 U.S.C. § 3553(e) and (f), as a re-sentencing of this

nature “clearly require[s] the court to impose a sentence based upon its evaluation

of the § 3553(a) factors.” Appellant’s Brief at 4-5. Accordingly, Coleman states
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that he is seeking to be sentenced under § 3553(a), as required by United States v.

Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Although his

argument is difficult to discern, Coleman appears to contend that, because the

Sentencing Commission’s policy statements limit the district court’s consideration

of the § 3553(a) factors – as the court can only consider these factors if a defendant

is eligible for a sentence reduction under the amendment, and not all crack cocaine

offenders are eligible and will receive the benefit of the court’s consideration of

these factors – it creates a mandatory sentencing system and violates the mandates

of Booker. Finally, Coleman states that, not to apply the amendment’s reduction

to all crack cocaine offenders – including those who were sentenced as career

offenders or pursuant to a mandatory minimum – violates the Due Process and

Equal Protection Clauses. 

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, where the issue presented involves a legal

interpretation, review is de novo. United States v. Pringle, 350 F.3d 1172, 1178

(11th Cir. 2003). Although a district court generally cannot modify a term of

imprisonment once it has been imposed, an exception lies in § 3582(c)(2), where: 
The 1 March 2008 Supplement has been superceded by the 1 May 2008 Supplement and, 1

when used with the 2007 Manual, constitutes the operative Guidelines Manual effective 1 May

2008. See U.S.S.G. Cover (Supp. May 1, 2008).

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in the case of 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 pursuant to 28 U.S.C. 994(o),

upon motion of the defendant or the Director of the Bureau of Prisons,

or on its own motion, 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.

18 U.S.C. § 3582(c)(2) (emphasis added). A reduction of a term of imprisonment

is not “consistent with applicable policy statements issued by the Sentencing

Commission” – and is, therefore, not authorized under § 3582(c)(2) – if 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).

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

calculated pursuant to § 2D1.1(c) by two levels, became effective 1 November 

2007. See U.S.S.G. App. C, Amend. 706 (2007). The Amendment was made

retroactive as of 3 March 2007, by incorporation into U.S.S.G. § 1B1.10(c). See

U.S.S.G. App. C, Amend. 713 (Supp. May 1, 2008). Although the retroactive 1

effect of Amendment 706 allows a defendant whose guideline imprisonment range

was determined in accordance with the offense level calculations under § 2D1.1 to

seek a reduction in his sentence, a defendant whose original sentence ultimately
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was based on something other than the offense level calculation under § 2D1.1 is

precluded from receiving a sentence reduction because the amendment does not

have the effect of lowering the applicable guideline range. See U.S.S.G.

§ 1B1.10(a)(2)(B). This occurs where, as here, the defendant was sentenced to a

statutory mandatory minimum sentence. See U.S.S.G. § 1B1.10, comment. (n.1)

(noting that defendant is not eligible for reduction, even if amendment is listed in

subsection (c), if “the amendment does not have the effect of lowering the

defendant’s applicable guideline range because of the operation of another

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

imprisonment)”); see also United States v. Black, 523 F.3d 892, 892-93 (8th Cir.

2008) (affirming the district court’s denial of § 3582 motion because defendant

was sentenced in accordance with the statutory mandatory minimum sentence, and

courts are not authorized to sentence below statutory minimum sentences).

In making the determination of whether to apply a retroactive amendment to

an eligible defendant, the district court must: (1) substitute the amended guideline

range for the originally applied guideline range; and (2) consider the § 3553(a)

factors and determine whether or not to reduce the defendant’s original sentence.

United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998). If a defendant is not

eligible because an amendment is not applicable, however, the district court is not
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required to engage in this two-step analysis. See U.S.S.G. § 1B1.10, comment.

(n.1) (“Eligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered only

by an amendment listed in subsection (c) that lowers the applicable guideline

range.”). 

Here, the applicable guideline imprisonment range of 121 to 151 months’

imprisonment was lower than the statutory mandatory minimum term of 240

months’ imprisonment that applied based on Coleman’s prior felony drug

conviction. See PSI at ¶ 45. Accordingly, the mandatory minimum became the

guideline sentence. See U.S.S.G. § 5G1.1(b) (“Where a statutorily required

minimum sentence is greater than the maximum of the applicable guideline range,

the statutorily authorized minimum sentence shall be the guideline sentence.”). 

The court sentenced Colman to the mandatory minimum term of 240 months’

imprisonment, and, thus, his sentence ultimately was based on something other

than the offense level calculation under § 2D1.1. Therefore, Coleman is precluded

from receiving a reduction in his sentence, and, therefore, we affirm the district

court’s denial of his § 3582 motion. See U.S.S.G. § 1B1.10(a)(2)(B). 

Furthermore, contrary to Coleman’s argument that he was entitled to be resentenced in consideration of the § 3553(a) factors, his guideline range – which,

pursuant to § 5G1.1(b), was 240 months’ imprisonment – was not lowered by an
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amendment, and therefore, he was not eligible for a sentence reduction under

§ 3582(c)(2). See U.S.S.G. § 1B1.10, comment. (n.1); see also U.S.S.G.

§ 5G1.1(b). Accordingly, the district court was not required to engage in the twostep analysis through which it would exercise its § 3553(a) discretion in

determining whether or not to reduce his sentence. See U.S.S.G. § 1B1.10,

comment. (n.1). Coleman’s assertions that the mandates of Booker are violated

because the Sentencing Commission’s policy statements create a mandatory

sentencing system by limiting the ability of the district court to consider the

§ 3553(a) factors, likewise, are without merit. The district court is required to

consider the § 3553(a) factors when a defendant is eligible for a sentence reduction

under § 3582(c)(2), thus preserving the court’s sentencing discretion, but Coleman

was not eligible for this reduction, and therefore, the court was not required to

consider the § 3553(a) factors. See U.S.S.G. § 1B1.10, comment. (n.1). 

Finally, to the extent that Coleman seeks to challenge the constitutionality of

Amendment 706, a § 3582(c)(2) motion is not the proper avenue through which to

raise these issues, as a motion of this type is limited to seeking a modification of a

sentence based on a sentencing range that has been lowered. See 18 U.S.C.

§ 3582(c)(2). Instead, Coleman could raise these claims in a motion to vacate,

pursuant to 28 U.S.C. § 2255. 
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III. CONCLUSION

For the reasons stated above, we conclude that the district court properly

denied Coleman’s motion brought pursuant to 18 U.S.C. § 3582 for reduction of

his sentence.

AFFIRMED.