United States v. Kenneth Dion McChriston

PER CURIAM:

Kenneth Dion McChriston appeals from the district court’s denial of his motion for a reduced sentence, filed pursuant to 18 U.S.C. § 3582 (c)(2) and Amendment 706 to the Sentencing Guidelines. McChriston argues that he was eligible for a sentence reduction because his sentence was not based upon the statutorily enhanced minimum sentence in 21 U.S.C. § 841 (b) (1) (A) (iii), and that the district court should have- applied Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), in his § 3582(c)(2) proceeding to redetermine the amount of drugs for which he was responsible. After thorough review, we affirm.

“We review de novo a district court’s conclusions about the scope of its legal authority under 18 U.S.C. § 3582 (c)(2).”

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 subsequently has been lowered by the Sentencing Commission. 18 U.S.C. § 3582 (c)(2). Any reduction, however, must be “consistent with applicable policy statements issued by the Sentencing Commission.”

Id.

The applicable policy statements, found in U.S.S.G. § 1B1.10, provide that a sentence reduction is not authorized under § 3582(c)(2) if “[a]n amendment listed in subsection (c) does not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). Where the statutory minimum sentence exceeds the top end of the applicable guideline range, the statutory minimum becomes the guideline. U.S.S.G. § 5Gl.l(b). The Sentencing Commission’s application notes indicate that the operation of “a statutory mandatory minimum term of imprisonment” would prevent an amendment from “hav[ing] the effect of lowering the defendant’s applicable guideline range.”

See U.S.S.G. § 1B1.10 cmt. n. 1(A).

McChriston’s arguments are foreclosed by precedent and the record. McChriston’s sentence was based upon an application of the statutory minimum sentence in 21 U.S.C. § 841 (b)(1)(A)(iii), and, thus, he was ineligible for a sentence reduction because his applicable guideline range would not be reduced by the application of Amendment 706.

See United States v. Williams, 549 F.3d 1337, 1341-42 (11th Cir.2008) (holding that a defendant sentenced to statutory minimum was not eligible for a sentence reduction, even where the court at the original sentencing had granted the government’s motion under U.S.S.G. § 5K1.1 to sentence below the mandatory minimum). In addition, the district court did not have authority to apply Apprendi to redetermine the drug amount because a § 3582(c)(2) proceeding is not a full resen-tencing.

See United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir.2005); U.S.S.G. § 1B1.10(a)(3) (noting that proceedings “do not constitute a full resentencing of the defendant”).

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AFFIRMED.

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. Moreover, to the extent McChriston suggests otherwise, we have held that neither *257 United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), nor Kimbrough v. United States, 552 U.S. 85 , 128 S.Ct. 558 , 169 L.Ed.2d 481 (2007), ”prohibit[s] the limitations on a judge’s discretion in reducing a sentence imposed by § 3582(c)(2) and the applicable policy statement by the Sentencing Commission.”

United States v. Melvin, 556 F.3d 1190, 1192 (11th Cir.), cert. denied, - U.S. -, 129 S.Ct. 2382 , 173 L.Ed.2d 1300 (2009).