Summary
affirming denial of § 3582(c) motion based on Amendment 706 because defendant filed motion before March 3, 2008
Summary of this case from U.S. v. MooreOpinion
No. 07-15649 Non-Argument Calendar.
March 18, 2008.
Darian Renard Tensley, Atlanta, GA, pro se.
Susan Hollis Rothstein-Youakim, U.S. Attorney's Office, Tampa, FL, for Plaintiff-Appellee.
Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 03-00227-CR-T-23TBM.
Before BIRCH, DUBINA and BLACK, Circuit Judges.
Darian Tensley appeals the district court's denial of his 18 U.S.C. § 3582(c) motion to modify his sentence, based on the U.S. Sentencing Commission's amendment to U.S.S.G. § 2D1.1, which lowered the base offense level for crimes involving cocaine base.
We review de novo a district court's finding that it did not have the authority to modify a sentence under § 3582(c)(2). United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002). Amendment 706, effective November 1, 2007, reduced the base offense level for offenses involving at least 50, but less than 150, grams of cocaine base from 32 to 30. See U.S.S.G.App. C, Amend. 706; compare U.S.S.G. § 2D1.1(c)(4) (2006), with U.S.S.G. § 2D1.1(c)(5) (2007). Section 3582(c)(2) states a court may modify a term of imprisonment, based on a Guidelines range that is subsequently lowered by the Sentencing Commission, if the reduction is consistent with applicable policy statements from the Sentencing Commission, and it does not limit the time period when a court may make such a modification. See 18 U.S.C. § 3582(c)(2). A § 3582(c)(2) reduction is not authorized unless the amendment is listed in § 1B1.10(c). U.S.S.G. § 1B1.10(a). Amendment 706 was listed in § 1B1.10(c) effective on March 3, 2008.
The district court did not err in denying the motion because Tensley prematurely filed it on November 8, 2007. Although the amendment is retroactive, it did not become retroactive until March 3, 2008. Accordingly, we affirm the district court.