FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

October 20, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-12564

Non-Argument Calendar

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D. C. Docket No. 95-00442-CR-JLK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERNEST PAYNE,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(October 20, 2008)

Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

On May 24, 1996, following appellant’s conviction for possession of
cocaine with intent to distribute and for distribution of cocaine, both offenses

constituting violations of 21 U.S.C. § 841(a)(1), the district court sentenced

appellant to concurrent prison terms of 240 months, the minimum sentences

prescribed by statute, 21 U.S.C. § 841(b)(1)(A). On March 11, 2008, appellant

moved the district court to reduce his sentences pursuant to the authority granted

the district court by 18 U.S.C. § 3582. The motion was based on Amendment 706

to the Sentencing Guidelines, which retroactively reduced the base offense levels

applicable to crack cocaine offenses. The district court denied his motion on the

ground that, because appellant was sentenced to the statutory mandatory minimum

sentences, Amendment 706 could provide him no relief.

Section 3582(c)(2) states that

[I]n 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 . . . the court may reduce the

term of imprisonment . . . if such a reduction is consistent with

applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2). A reduction of a term of imprisonment is not “consistent

with applicable policy statements issued by the Sentencing Commission” if the

retroactive amendment does not have the effect of lowering the defendant’s

applicable guidelines range. U.S.S.G. § 1B1.10(a)(2)(B) (Supp. Mar. 3, 2008).

Amendment 706 allows a defendant to seek a reduction in his sentence if

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that sentence was based on the § 2D1.1 offense level for crack cocaine offenses.

However, a defendant whose original sentence was based on something other than

§ 2D1.1 is precluded from receiving a sentence reduction, since the amendment

does not have the effect of lowering the applicable guidelines range. United States

v. Moore, No. 08-11230, slip op. 3372, 3375-76 (11th Cir. Sept. 5, 2008); see

U.S.S.G. § 1B1.10(a)(2)(B). This occurs, for example, where the defendant was

sentenced to a statutory mandatory minimum sentence. See Moore, slip op. at

3376 (citing U.S.S.G. § 1B1.10, comment. (n.1(A)) (noting that the operation of

another guideline or statutory provision, such as “a statutory mandatory minimum

term of imprisonment,” would prevent the crack cocaine amendment from having

the effect of lowering the defendant’s applicable guideline range)).

Because appellant was subject to statutory mandatory minimum sentences of

240 months, the court was precluded from granting him § 3582(c)(2) relief.

AFFIRMED.

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