            Case: 12-12130    Date Filed: 09/04/2013   Page: 1 of 7


                                                           [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 12-12130
                          Non-Argument Calendar
                        ________________________

                   D.C. Docket No. 1:00-cr-00066-DHB-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

ANDREW WEBB,

                                                           Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                       ________________________

                             (September 4, 2013)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

     Andrew Webb, 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) and
              Case: 12-12130   Date Filed: 09/04/2013   Page: 2 of 7


Amendment 750 to the Sentencing Guidelines. In 2000, a jury convicted Webb of

(1) conspiracy to distribute and to possess with intent to distribute more than 50

grams of crack cocaine and 5 kilograms of cocaine hydrocholoride, and (2)

attempted possession with intent to distribute more than 500 grams of cocaine

hydrocholoride, both in violation of 21 U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. §

2. The presentence investigation report (“PSI”) held Webb accountable for more

than 1.5 kilograms of crack cocaine, resulting in a base offense level of 38 under

U.S.S.G. § 2D1.1(c)(1). Webb received a 2-level enhancement for his role in the

offense and a 2-level enhancement for possession of a firearm, for a total offense

level of 42. The court concluded that he was a career offender, but the court used

his offense level under § 2D1.1 because it was higher than his offense level under

U.S.S.G. § 4B1.1. As a career offender, Webb’s criminal history category was VI,

and his corresponding guideline range was 360 months’ to life imprisonment.

      The district court originally sentenced Webb to downward departure

sentences of 264 months’ imprisonment, but we vacated his sentences and

remanded for resentencing. On remand, the district court sentenced Webb to 360

months’ imprisonment.       The government subsequently filed 2 separate

Fed.R.Crim.P. 35(b) motions to reduce Webb’s sentence based on substantial

assistance, and the district court first reduced his sentence to 264 months’

imprisonment, and then reduced it further to 228 months’ imprisonment.


                                        2
                Case: 12-12130        Date Filed: 09/04/2013       Page: 3 of 7


       In 2011, Webb filed a pro se § 3582(c)(2) motion to reduce his sentence,

pursuant to Amendment 750 to the Sentencing Guidelines. The district court

denied Webb’s motion after determining that it was not authorized to modify his

sentence because his amended guideline range after Amendment 750 was the same

as his original guideline range. The court found that Amendment 750 reduced

Webb’s base offense level to 34 and his total offense level to 38, which, combined

with his career offender driven criminal history category of VI, produced an

amended guideline range of 360 months to life.

       On appeal, Webb challenges the district court’s sentence for a variety of

reasons, and the government responded with a Motion for Summary Affirmance,

arguing that Webb is not eligible for a sentence reduction. After careful review,

we grant the government’s motion for summary affirmance and affirm.

       Summary disposition is appropriate, inter alia, where “the position of one of

the parties is clearly right as a matter of law so that there can be no substantial

question as to the outcome of the case, or where, as is more frequently the case, the

appeal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th

Cir. 1969)1; see United States v. Martinez, 407 F.3d 1170, 1173-74 (11th Cir.

2005) (construing the defendant’s “unconventional” motion as a motion for

summary reversal, granting the motion, vacating the defendant’s sentence, and

1
       In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all Fifth Circuit decisions that were issued before October 1, 1981.
                                                3
              Case: 12-12130     Date Filed: 09/04/2013   Page: 4 of 7


remanding the case for resentencing where the district court had committed plain

error by treating the Sentencing Guidelines as mandatory).

      We review a district court’s decision whether to reduce a sentence pursuant

to 18 U.S.C. § 3582(c)(2) for abuse of discretion. United States v. Webb, 565 F.3d

789, 792 (11th Cir. 2009).      We review the district court’s legal conclusions

regarding the scope of its authority under the Sentencing Guidelines de novo. Id.

      By statute, a district court may modify a term of imprisonment that was

based on a sentencing range that has subsequently been lowered by the Sentencing

Commission. 18 U.S.C. § 3582(c)(2). When this occurs, “the court may reduce

the term of imprisonment, after considering the factors set forth in [18 U.S.C. §]

3553(a) to the extent that they are applicable, if such a reduction is consistent with

applicable policy statements issued by the Sentencing Commission.” Id. The

applicable policy statements are found in U.S.S.G. § 1B1.10.

      Amendment 750 retroactively lowered the sentencing range applicable to

crack cocaine offenses by revising the crack cocaine quantity tables listed in §

2D1.1(c). U.S.S.G. App. C, amend. 750 (2011). When Webb was sentenced, 1.5

kilograms or more of crack cocaine resulted in a base offense level of 38. See

U.S.S.G. § 2D1.1(c)(1) (2001). Section 2D1.1(c) now assigns a base offense level

of 34 in cases involving at least 840 grams, but less than 2.8 kilograms, of crack

cocaine. See U.S.S.G. § 2D1.1(c)(3) (2012).


                                          4
               Case: 12-12130     Date Filed: 09/04/2013   Page: 5 of 7


      The Supreme Court has held that a sentencing adjustment, pursuant to §

3582(c)(2), is not a resentencing proceeding. Dillon v. United States, 130 S.Ct.

2683, 2690-91 (2010) (providing that § 3582(c)(2) does not authorize a

resentencing, but instead permits a modification by giving courts the power to

reduce a sentence within the narrow bounds established by the Sentencing

Commission). The Supreme Court provided a two-step approach for § 3582(c)(2)

proceedings: (1) a court must first determine that a reduction in sentence is

consistent with the Sentencing Commission’s policy statements; and (2) it may

then consider whether a reduction is warranted based on the § 3553(a) factors. Id.

at 2691-92. Thus, if the first step is not satisfied, consideration of the § 3553(a)

factors is not appropriate. Id.

      The Court in Dillon also held that because § 3582(c)(2) is a narrow

exception to the general rule that a prison sentence imposed under the Guidelines

cannot be modified, the constitutional and remedial holdings of United States v.

Booker, 543 U.S. 220 (2005), do not apply to § 3582(c)(2) proceedings because

those proceedings are modifications of the term of imprisonment, not

“resentencings.”    See 130 S.Ct. at 2690-93 (explaining that § 3582(c)(2)

proceedings have a limited scope and purpose, and that the proceedings are “not

constitutionally compelled,” but instead represent a “congressional act of lenity”).

Similarly, we have held that Booker and Kimbrough v. United States, 552 U.S. 85


                                          5
              Case: 12-12130      Date Filed: 09/04/2013   Page: 6 of 7


(2007), do not prohibit the limitations imposed by § 3582(c)(2) and § 1B1.10 on a

judge’s discretion in reducing a sentence, and that the district court is only

permitted to reduce a defendant’s sentence consistent with the applicable policy

statements of the Sentencing Commission. United States v. Melvin, 556 F.3d

1190, 1191-93 (11th Cir. 2009).

      In this case, Webb’s arguments on appeal are squarely foreclosed by binding

precedent. At sentencing, the district court adopted the drug quantity findings in

the PSI after Webb raised no objection to them -- namely, that Webb was properly

attributed at least 1.5 kilograms of crack cocaine, which resulted in a base offense

level of 38. Under Amendment 750, that drug quantity now results in a base

offense level of 34, which is a lower base offense level than Webb had at

sentencing. Compare U.S.S.G. § 2D1.1(c)(1) (2012), with U.S.S.G. § 2D1.1(c)(1)

(2001). Including his 2-level enhancement for role in the offense and his 2-level

enhancement for possession of a firearm, Webb would have a total offense level of

38 after Amendment 750, which, when combined with his career offender driven

criminal history category of VI, yields a corresponding amended guideline range of

360 months’ to life imprisonment. See U.S.S.G. Ch. 5, Pt. A (table). This range

is the same range as when Webb was originally sentenced. Thus, the district court

correctly denied Webb’s instant § 3582(c)(2) motion because Amendment 750 did

not have the effect of lowering his guideline range. See 18 U.S.C. § 3582(c)(2).


                                          6
              Case: 12-12130     Date Filed: 09/04/2013   Page: 7 of 7


      We are also unpersuaded by Webb’s claim that the district court erred by not

considering the § 3553(a) factors and his previous sentence reductions under Rule

35(b) based on substantial assistance prior to denying his § 3582(c)(2) motion.

Under clear and binding case law, once the district court determined that Webb

was ineligible for a reduction in his sentence because Amendment 750 did not

lower his guideline range, it did not have the authority to reduce his sentence and

did not need to proceed to the second step of considering the § 3553(a) factors.

See Dillon, 130 S.Ct. at 2691.        Furthermore, Webb’s prior reductions for

substantial assistance only would be relevant to the proceedings had his guideline

range been lowered by Amendment 750, at which point the court would have been

permitted to grant him a reduction below the applicable guideline range. As for

Webb’s argument that Booker and Kimbrough prohibit limitations on the

discretion of the district court to reduce his sentence in a § 3582(c)(2) proceeding,

we previously have rejected this argument, and the Supreme Court has held that

Booker is inapplicable to § 3582(c)(2) proceedings. See Dillon, 130 S.Ct. at 2690-

93; Melvin, 556 F.3d at 1191-93.

      Because Webb’s arguments fail under binding precedent, and because the

government’s position is clearly right as a matter of law, we summarily AFFIRM

the denial of Webb’s motion to reduce his sentence.




                                         7
