            Case: 12-14286   Date Filed: 09/06/2013   Page: 1 of 7




                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-14286
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:07-cr-20971-PAS-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

ANDY AMEDA,

                                                          Defendant-Appellant.

                       ________________________

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

                             (September 6, 2013)

Before TJOFLAT, HULL and PRYOR, Circuit Judges.

PER CURIAM:
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      Andy Ameda, a federal prisoner convicted of crack cocaine offenses,

appeals the denial of his pro se 18 U.S.C. § 3582(c)(2) motion for a sentence

reduction based on Amendment 750 to the Sentencing Guidelines. After review,

we affirm.

      Under § 3582(c)(2), a district court may reduce the prison sentence “of a

defendant who has been sentenced to a term of imprisonment based on a

sentencing range that has subsequently been lowered by the Sentencing

Commission pursuant to 28 U.S.C. § 994(o).” 18 U.S.C. § 3582(c)(2); see also

U.S.S.G. § 1B1.10(a)(1). The district court may grant a § 3582(c)(2) motion only

“if such a reduction is consistent with applicable policy statements issued by the

Sentencing Commission.” 18 U.S.C. § 3582(c)(2). A reduction is not consistent

with the Sentencing Commission’s policy statements if it is based on an

amendment that does not have the effect of lowering the defendant’s applicable

guidelines range. U.S.S.G. § 1B1.10(a)(2)(B).

      Where the amendment to the guidelines reduces the defendant’s base offense

level, but does not change the sentencing range upon which the defendant’s

sentence was based, the district court is not authorized to grant the § 3582(c)(2)

motion. United States v. Berry, 701 F.3d 374, 376 (11th Cir. 2012). Thus, a

defendant is not eligible for a § 3582(c)(2) sentence reduction if the amendment

does not actually lower the defendant’s applicable guidelines range because the


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defendant’s sentence was based on the statutory mandatory minimum. United

States v. Mills, 613 F.3d 1070, 1077-78 (11th Cir. 2010); see also U.S.S.G.

§ 1B1.10 cmt. n.1(A).” 1 Here, the district court properly denied Ameda’s

§ 3582(c)(2) motion because Ameda’s sentence was based on the ten-year statutory

mandatory minimum in 21 U.S.C. § 841(b)(1)(A)(iii).

       In 2007, Ameda was charged with conspiring with his brother to possess

with intent to distribute 50 grams or more of crack cocaine, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A)(iii) and 846 (“Count 1”), and possessing with intent

to distribute 5 grams or more of crack cocaine, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(B)(iii) and § 2 (“Count 2”). Ameda pled guilty to Count 2 and

entered an Alford plea as to Count 1, which carried a statutory mandatory

minimum ten-year sentence.

       Ameda entered an Alford plea on Count 1 because, although he maintained

he had not conspired with his brother, he knew that if he proceeded to trial, the

government would file a § 851 notice, which would subject him to a mandatory life

sentence on Count 1, and he agreed that the government could prove he was guilty

of Count 1 beyond a reasonable doubt. Ameda also indicated that he was

unwilling to agree to the total amount of drugs involved in the conspiracy because

not all of the lab reports had been finalized. The parties agreed that the district

       1
        “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. Jones, 548 F.3d 1366, 1368 (11th Cir. 2008).
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court would determine the drug amount after holding a “mini-trial” on the issue.

The district court accepted Ameda’s pleas and found him guilty of both counts.

      At his 2008 sentencing, Ameda did not dispute the amount of drugs

attributed to him as relevant conduct, which included the 5.9 grams Ameda

personally sold (the basis for Count 2) and an additional 53.6 grams Ameda’s

brother had sold (as part of the conspiracy charged in Count 1), for a total of 59.5

grams of a “mixture or substance” containing cocaine base. Ameda also did not

object to the Presentence Investigation Report’s calculation of his base offense

level at 30, pursuant to U.S.S.G. § 2D1.1(a)(3) (2008), based on the total amount

of crack cocaine involved or to the resulting advisory guidelines range of 130 to

162 months’ imprisonment.

      Instead, Ameda argued that the district court should use the weight of the

actual cocaine base (43.8 grams), rather than the weight of the mixture (59.5

grams), so that Ameda would be subject to the five-year mandatory minimum in 21

U.S.C. § 841(b)(1)(B)(iii) rather than the ten-year mandatory minimum in

§ 841(b)(1)(A)(iii). The district court rejected Ameda’s argument and imposed the

ten-year mandatory minimum sentence.

      Effective November 1, 2011, Amendment 750 lowered the base offense

levels for particular crack cocaine quantities in U.S.S.G. § 2D1.1(c). See U.S.S.G.

App. C., Amends. 748, 750. If Amendment 750 had been in place when Ameda


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was sentenced, Ameda’s offense level would have been 26, rather than 30. See

U.S.S.G. § 2D1.1(c)(7) (involving at least 28 grams, but less than 112 grams, of

cocaine base). Because Ameda’s sentence was based on the ten-year mandatory

minimum, however, Amendment 750 did not lower his sentencing range, the low

end of which remains 120 months. Thus, the district court was not authorized

under § 3582(c)(2) to reduce Ameda’s sentence. See Mills, 613 F.3d at 1078.

      Ameda contends that at sentencing the district court attributed to him only

the 5.9 grams of crack cocaine he personally sold (which was the basis for Count

2), and thus he is subject to the five-year mandatory minimum in

§ 841(b)(1)(B)(iii) and not the ten-year mandatory minimum in § 841(b)(1)(A)(iii).

The record belies this claim. Ameda entered an Alford plea to Count 1 of the

indictment, which charged a drug distribution conspiracy involving 50 grams or

more of crack cocaine, in violation of § 841(b)(1)(A)(iii). At sentencing, Ameda

did not dispute the drug quantity attributed to him as relevant conduct except to

argue that the actual weight rather than the mixture weight should be used. The

sentencing court stated multiple times that it was required to impose the mandatory

minimum ten-year sentence and that it was varying “downward from the low end

of the guidelines [of 130 to 162 months] and . . . impos[ing] the minimum

mandatory.” Although the sentencing court discussed the 5.9 grams of crack

cocaine that were the basis for the substantive offense in Count 2, the sentencing


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court did not, as Ameda suggests, find that Ameda was responsible for only those

5.9 grams for sentencing purposes.

      We further note that this Court already has concluded that Ameda’s

applicable mandatory minimum sentence was the ten-year mandatory minimum in

§ 841(b)(1)(A)(iii). In an earlier 28 U.S.C. § 2255 motion, Ameda raised a similar

challenge, couched as a due process claim, in which he argued, inter alia, that his

“mandatory minimum was not ten(10) years” because the sentencing court had

“impermissibly aggregated the drug amounts to reach the mandatory minimum

threshold.” The district court denied Ameda’s § 2255 motion. In an order denying

Ameda’s request for a Certificate of Appealability, this Court stated that at his plea

hearing, Ameda “acknowledged that the government could prove that he had

conspired to distribute 50 grams or more of crack cocaine, and that the mandatory

minimum sentence for such an offense was 10 years.” The Court further stressed

that “although Ameda filed no objections to his presentence investigation report,

the [sentencing] court allowed him to raise the issue of the appropriate amount of

drugs at sentencing.” The Court concluded that Ameda was not denied due

process. See Ameda v. United States, No. 11-14441 (11th Cir. May 24, 2012)

(unpublished).

      Ameda also argues that the district court: (1) constructively amended the

indictment by accepting his Alford plea to Count 1; and (2) erred at the original


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sentencing by holding him responsible for 59.5 grams of crack cocaine as relevant

conduct. These issues are outside the scope of a § 3582(c)(2) proceeding. See

Dillon v. United States, 560 U.S. ___, 130 S. Ct. 2683, 2693-94 (2010)

(concluding that the district court properly declined to address the defendant’s

claims of original sentencing errors because they were not affected by the

guidelines amendment at issue and were “outside the scope of the proceeding

authorized by § 3582(c)(2)”).

      For these reasons, the district court properly denied Ameda’s § 3582(c)(2)

motion.

      AFFIRMED.




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