FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Aug. 28, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-11652

Non-Argument Calendar

________________________

D. C. Docket No. 03-60093-CR-WPD

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

EDGAR WIGGINS, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(August 28, 2008)

Before BIRCH, HULL and PRYOR, Circuit Judges.

PER CURIAM:

Edgar Wiggins, proceeding pro se, is appealing the district court’s denial of
2

his 18 U.S.C. § 3582(c)(2) motion for modification of his sentence based on

Amendment 706 to U.S.S.G. § 2D1.1, which lowered the base offense levels

applicable to crack cocaine offenses. See U.S.S.G. App. C, Amend. 706 (2007). 

The district court denied Wiggins’s motion because he was originally sentenced

according to the statutory mandatory minimum, and not according to § 2D1.1

calculations. Based on our review of the record and analysis of U.S.S.G. §

5G1.1(b), 18 U.S.C. § 3582(c)(2), and Amendment 706, we discern no reversible

error and therefore AFFIRM. 

I. BACKGROUND

In May 2003, Wiggins was indicted for possession with intent to distribute

at least five grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count

One); possession of ammunition by a convicted felon, in violation of 21 U.S.C. §

922(g) (Count Two); and carrying a firearm during and in relation to a drug

trafficking scheme, in violation of 18 U.S.C. § 924(c) (Count Three). Wiggins

entered into a written a written plea agreement in which he pled guilty to Counts

One and Three, and Count Two was dismissed. R1-22, 25. According to the

presentence investigation report (“PSI”), the calculated sentence guideline range

for Count One was 51 to 63 months. However, because Wiggins’s offense

involved five grams or more of crack cocaine, he was subject to a 60 month
3

mandatory minimum, pursuant to 21 U.S.C. § 841(b)(1)(B)(iii). Based on this

statute, the district court sentenced Wiggins to 60 months of imprisonment for

Count One. 21 U.S.C. § 841(b)(1)(B); R1-25 at 2. 

In March 2008, Wiggins filed a 18 U.S.C. § 3582(c)(2) motion, seeking a

modification of his original sentence. R1-29. He requested that the court apply a

“newly calculated sentencing range,” in accordance with Amendment 706, which

lowered the offense levels in crack cocaine cases by two levels. Id. at 3. The

district court denied the motion because Wiggins was sentenced to the statutory

mandatory minimum for his offense, and thus even if Amendment 706 reduced the

guideline range, this would not change his sentence. R1-30 at 2. Wiggins filed a

motion for reconsideration, in which he contended that the district court has

authority to reduce his sentence to a term less than the mandatory minimum

sentence of 60 months. R1-31. The district court denied this motion for the same

reasons that it denied Wiggins’s original § 3582(c)(2) motion. R1-32. 

II. DISCUSSION

On appeal, Wiggins maintains that the district court has the authority to

reduce his sentence, and reasserts his eligibility for a sentence reduction based on

Amendment 706. We review a district court’s decision to deny a § 3582(c)(2)

motion for abuse of discretion. United States v. Brown, 332 F.3d 1341, 1343 (11th
4

Cir. 2003). An error of law can constitute an abuse of discretion. Id. 

Amendment 706 allows a prisoner to seek a reduced sentence for crack

cocaine offenses as long as their sentence was determined using the guideline

range calculations in § 2D1.1. However, a prisoner is not eligible for a reduction if 

“the amendment does not have the effect of lowering the his 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,

comment. n.1(A). Thus in cases “[w]here a statutorily required minimum

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

statutorily required minimum sentence shall be the guideline sentence.” U.S.S.G.

§ 5G1.1(b) (emphasis added). According to the plain language of U.S.S.G. §

5G1.1(b), the district court shall use the mandatory minimum as a sentencing floor

in cases falling under statutes such as 21 U.S.C. § 841(b)(1)(B).

Wiggins’s assertion that the district court should have the ability to depart

from a mandatory minimum sentence is without merit given the applicable statutes

and law. The district court sentenced Wiggins to 60 months of imprisonment

because the level calculations under § 2D1.1 yielded a sentence range that was

shorter than the statutorily required mandatory minimum. The district court does

not have the power to ignore U.S.S.G. § 5G1.1(b) and reduce a prisoner’s sentence
5

to a term below the mandatory minimum. Wiggins contends that the mandatory

minimum actually becomes the guideline sentence and is, therefore, subject to

analysis under United States v. Booker, 543 U.S. 220 (2005). However, just

because the mandatory minimum sentence is sometimes treated as the sentencing

guideline, this does not mean that the two should be treated as legally analogous. 

The Booker decision made the sentencing guidelines advisory and subject to

evaluation according to the 18 U.S.C. § 3553(a) factors, but the decision did not

reach any issues involving statutorily required mandatory minimums. Booker, 543

U.S. at 259, 261, 264. The mandatory minimum is not advisory, and the district

court in this case was not authorized to sentence Wiggins to a prison term shorter

than 60 months. 

III. CONCLUSION

 Based on the language of U.S.S.G. § 5G1.1(b), the district court cannot

sentence Wiggins to any less than the statutorily required 60 month mandatory

minimum sentence. Because Wiggins’s sentence was based on something other

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

§ 3582 reduction in his sentence based on Amendment 706. The district court did

not err in its interpretation and application of the law, and therefore we affirm. 

AFFIRMED