`
`IN THE UNITED STATES COURT OF APPEALS
`
`FOR THE ELEVENTH CIRCUIT
`________________________
`
`No. 09-10009
`Non-Argument Calendar
`________________________
`
` FILED
`U.S. COURT OF APPEALS
`ELEVENTH CIRCUIT
`JUNE 3, 2009
`THOMAS K. KAHN
`CLERK
`
`D. C. Docket No. 91-00189-CR-J-20
`
`UNITED STATES OF AMERICA,
`
`
`
`
`
`
`HUMPHREY S. FRANCIS,
`
`
`Plaintiff-Appellee,
`
`versus
`
`Defendant-Appellant.
`
`________________________
`
`Appeal from the United States District Court
`for the Middle District of Florida
`_________________________
`
` (June 3, 2009)
`
`Before DUBINA, Chief Judge, TJOFLAT and FAY, Circuit Judges.
`
`PER CURIAM:
`
`
`
`Humphrey Francis, who was convicted of a cocaine offense, appeals
`
`through counsel the district court’s denial of his pro se motion for reduction of
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`sentence, pursuant to 18 U.S.C. § 3582(c)(2) and based on Amendment 706, which
`
`reduced the base offense levels applicable to offenses that involved less than 4.5
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`kilograms of crack cocaine. The district court denied the motion because Francis
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`was held responsible for more than 4.5 kilograms of crack cocaine, such that
`
`Amendment 706 did not affect his guideline range. For the reasons set forth
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`below, we affirm.
`
`“We review de novo a district court’s conclusions about the scope of its
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`legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d
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`983, 984 (11th Cir. 2008). A district court may reduce the sentence “of a
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`defendant who has been sentenced to a term of imprisonment based on a
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`sentencing range that has subsequently been lowered by the Sentencing
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`Commission.” 18 U.S.C. § 3582(c)(2). Any reduction, however, must be
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`“consistent with applicable policy statements issued by the Sentencing
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`Commission.” Id. The applicable policy statements provide that “a reduction in
`
`the defendant’s term of imprisonment is not authorized under 18 U.S.C. 3582(c)(2)
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`and is not consistent with this policy statement if . . . [a retroactive amendment] is
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`applicable to the defendant but the amendment does not have the effect of lowering
`
`2
`
`
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`the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10, comment.
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`(n.1(A)).
`
`The district court properly denied the motion. See James, 548 F.3d at 984.
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`First, Francis’s guideline range was not lowered as a result of Amendment 706,
`
`given that he was held accountable for 13.06 kilograms of crack cocaine and
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`Amendment 706 only lowered the base offense levels for quantities of crack
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`cocaine less than 4.5 kilograms. See id. at 986 (holding that the defendant was
`
`not entitled to a reduction in sentence because he had been held accountable for
`
`more than 4.5 kilograms of crack cocaine, and Amendment 706 did not lower his
`
`guideline range). Although Francis argues that the district court did not make a
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`finding of fact at sentencing that he was responsible for more than 4.5 kilograms of
`
`crack cocaine, the presentence investigation report specified as much, and the
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`district court indicated in a Statement of Reasons that it had adopted the factual
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`findings in the PSI. Moreover, in his motion, Francis admitted that the district
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`court adopted this drug-amount finding.
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`Also, to the extent that Francis argues that the district court could have relied
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`on Booker and Kimbrough to reduce his sentence or otherwise should have applied
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`Booker and Kimbrough, his argument is without merit because those cases do not
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`apply to § 3582 proceedings. See United States v. Melvin, 556, F3d 1190, 1192-93
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`3
`
`
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`(11th Cir. 2009) (holding that neither Booker nor Kimbrough render a guideline
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`range advisory in the context of a § 3582 proceeding), petition for cert. filed, (U.S.
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`Feb. 10, 2009) (No. 08-8664); United States v. Moreno, 421 F.3d 1217, 1220-21
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`(11th Cir. 2005) (holding that Booker did not provide a jurisdictional basis for
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`§ 3582 relief because it was not a sentencing amendment). Accordingly, we
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`affirm.
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`AFFIRMED.
`
`4
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