USA v. Theresa Brown

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 9, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 08-15382
Non-Argument Calendar
________________________
D. C. Docket No. 93-06179-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THERESA BROWN,
a.k.a. Sharon Jones,
a.k.a. Valerie Bozeman,
a.k.a. Bam,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 9, 2010)
Before EDMONDSON, BLACK and ANDERSON, Circuit Judges.

-- 1 of 4 --

PER CURIAM:
Theresa Brown, a federal prisoner convicted of a crack cocaine offense,
appeals the district court’s denial of her 18 U.S.C. § 3582(c)(2) motion for a
reduced sentence based on Amendment 706 to the Sentencing Guidelines. No1
reversible error has been shown; we affirm.
The district court determined that Brown was unentitled to a sentence
reduction because she was subject to a mandatory minimum life sentence based on
her prior drug convictions and the amount of drugs she possessed. See 21 U.S.C.
§§ 841(b)(1)(A)(iii), 851. We review de novo the district court’s legal conclusions
about the scope of its authority in a section 3582(c)(2) proceeding. United States
v. James, 548 F.3d 983, 984 (11th Cir. 2008).
A district court may modify a term of imprisonment in the case of a
defendant who was sentenced to a term of imprisonment based on a sentencing
range that later has been lowered by the Sentencing
Commission. 18 U.S.C. § 3582(c)(2). But a defendant who initially was sentenced
to the statutory minimum is ineligible for a reduction under Amendment 706 and
section 3582(c)(2). United States v. Williams, 549 F.3d 1337, 1342 (11th Cir.
Amendment 706 retroactively reduced by two the base offense levels in crack cocaine1
sentences calculated pursuant to the drug quantity table, U.S.S.G. § 2D1.1(c). U.S.S.G. App.
C, Amend. 713 (Supp. 1 May 2008).
2

-- 2 of 4 --

2008); see also U.S.S.G. § 1B1.10, cmt. n.1(A) (noting that “the operation of
another guideline or statutory provision,” such as “a statutory mandatory minimum
term of imprisonment,” would prevent Amendment 706 from “hav[ing] the effect
of lowering the defendant’s applicable guideline range”). Here, the district court
committed no error in denying Brown a sentence reduction because her mandatory
minimum life sentence caused Amendment 706 not to have the effect of lowering
her guidelines range.2
Brown’s appellate arguments are unavailing. She argues that her mandatory
life sentence violates Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), because the
jury did not determine a specific drug quantity. But Apprendi involves no
retroactively applicable guideline amendment and provides no independent
jurisdictional basis to reduce Brown’s sentence. See United States v. Moreno, 421
F.3d 1217, 1220 (11th Cir. 2005) (explaining that section 3582(c)(2) does not
provide a basis for a de novo resentencing). And her argument that the guidelines
should be advisory in a section 3582(c)(2) proceeding based on United States v.
Booker, 125 S.Ct. 738 (2005), and Kimbrough v. United States, 128 S.Ct. 558
In addition, Brown was precluded from a sentence reduction because she was2
responsible for 75 kilograms of cocaine. If a defendant is responsible for at least 4.5 kilograms
of crack cocaine, Amendment 706 does not reduce her applicable guidelines range, and she is
ineligible for a sentence reduction under section 3582(c)(2). United States v. Jones, 548 F.3d
1366, 1369 (11th Cir. 2008), cert. denied, 129 S.Ct. 1657 (2009).
3

-- 3 of 4 --

(2007), squarely is foreclosed by our precedent. See United States v. Melvin, 556
F.3d 1190, 1192-93 (11th Cir.), cert. denied, 129 S.Ct. 2382 (2009).
AFFIRMED.
4

-- 4 of 4 --