USA v. Michael Levon Hills

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAR 30, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-14087
Non-Argument Calendar
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D. C. Docket No. 04-00034-CR-4-RH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL LEVON HILLS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(March 30, 2010)
Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:

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Michael Levon Hills, a federal prisoner convicted of a crack cocaine offense,
proceeding pro se, appeals the district court’s denial of his motion for a sentence
reduction, pursuant to 18 U.S.C. § 3582(c)(2). While Hills does not dispute that
his original sentence was based on the application of a statutory
mandatory-minimum term, he argues that his mandatory-minimum sentence is
invalid because United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), and
Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558 (2007), rejected any
mandatory regime, including mandatory-minimum sentences. After review of the
record and the parties’ briefs, we affirm the district court’s denial of Hills’s
§ 3582(c)(2) motion.
In reviewing the district court’s denial of a § 3582(c)(2) motion, we review
the district court’s legal conclusions de novo. United States v. Pringle, 350 F.3d
1172, 1178 (11th Cir. 2003). A district court may modify a sentence “in the case
of a defendant who has been sentenced . . . based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.” § 3582(c)(2)
(emphasis added). In such a case, the court may reduce the defendant’s sentence
after considering applicable § 3553(a) factors, but only “if such a reduction is
consistent with applicable policy statements issued by the Sentencing
Commission.” Id. A reduction is not consistent with applicable policy statements
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and is not authorized 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 applies retroactively, amends the Drug Quantity
Table in U.S.S.G. § 2D1.1(c) “to provide a two-level reduction in base offense
levels for crack cocaine offenses.” United States v. Moore, 541 F.3d 1323, 1325
(11th Cir. 2008), cert. denied, McFadden v. United States, 129 S. Ct. 965, and cert.
denied, 129 S. Ct. 1601 (2009). However, a defendant who was originally
sentenced based on a statutory minimum is not eligible for relief under
Amendment 706. See United States v. Williams, 549 F.3d 1337, 1342 (11th Cir.
2008) (per curiam). Furthermore, this Court has held that Booker and Kimbrough
are not applicable to § 3582(c)(2) proceedings. United States v. Melvin, 556 F.3d
1190, 1192–93 (11th Cir. 2009) (per curiam), cert. denied, 129 S. Ct. 2382 (2009).
We have also recognized that proceedings under § 3582(c)(2) do not
constitute de novo resentencings. United States v. Moreno, 421 F.3d 1217, 1220
(11th Cir. 2005) (per curiam) (citation omitted). Therefore, § 3582(c)(2) “does not
grant to the court jurisdiction to consider extraneous resentencing issues.” United
States v. Bravo, 203 F.3d 778, 782 (11th Cir. 2000). As such, we cannot review
Hills’s arguments concerning the constitutionality of mandatory-minimum
sentencing, or the court’s imposition of a ten-year mandatory-minimum sentence
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rather than a five-year sentence.
Because Hills was originally sentenced based on a statutory mandatory
minimum that was not affected by Amendment 706, the district court lacked
authority to grant his § 3582(c)(2) motion. Accordingly, we affirm.
AFFIRMED.
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