              Case: 13-12692     Date Filed: 08/28/2014   Page: 1 of 4


                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 13-12692
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:90-cr-00145-CB-3

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

JAMES ALLEN STARKS,
a.k.a. Big Al,

                                                               Defendant-Appellant.
                           ________________________

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

                                 (August 28, 2014)

Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:

      James Allen Starks, proceeding pro se, is a federal prisoner serving a

sentence of life imprisonment for conspiracy to possess with intent to distribute
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cocaine (powder) and cocaine base (crack), structuring financial transactions, and

money laundering. In 2013, Starks moved to modify his sentence pursuant to

18 U.S.C. § 3582(c)(2) and Amendment 750 of the United States Sentencing

Guidelines (USSG). The district court denied this motion, finding that

Amendment 750 does not lower Starks’s base offense level because his offense

involved 104 kilograms of cocaine base. Starks now appeals, and the government

has filed a motion for summary affirmance and a motion to stay the briefing

schedule. After careful review, we GRANT the government’s motion to

summarily affirm the district court’s ruling. As a result, the government’s motion

to stay the briefing schedule is DENIED as moot.

       Summary disposition is appropriate either where time is of the essence, such

as “situations where important public policy issues are involved or those where

rights delayed are rights denied,” or 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 Pursuant to 18 U.S.C. § 3582(c)(2), a district court may modify a

defendant’s term of imprisonment where the defendant was sentenced “based on a


1
  In Bonner v. Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc) the Eleventh Circuit adopted
as binding precedent the decisions of the former Fifth Circuit rendered before October 1, 1981.
Id. at 1209.

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sentencing range that has subsequently been lowered by the Sentencing

Commission.” However, a sentence reduction is not authorized under § 3582(c)(2)

if the relevant amendment “does not have the effect of lowering the defendant’s

applicable guideline range.” USSG § 1B1.10(a)(2)(B); United States v. Hippolyte,

712 F.3d 535, 542 (11th Cir. 2013).

      Summary disposition for the government is appropriate here because Starks

is clearly not entitled to be resentenced pursuant to § 3582(c)(2) and Amendment

750. It is true that Amendment 750 reduces Stark’s base offense level from 42 to

38. See USSG § 2D1.1(c)(1) (Nov. 2010) (providing that the base offense level is

38 for offenses involving 8.4 kilograms or more of cocaine base). But Stark’s total

offense level and his guidelines range remain the same because of a four-level

leadership role enhancement and a two-level enhancement for obstruction of

justice. See USSG ch. 5, pt. A, comment. (n.2) (“An offense level of more than 43

is to be treated as an offense level of 43.”); United States v. Starks, 409 F. App’x

264, 265 (11th Cir. 2010) (unpublished) (explaining why Amendment 706 does not

entitle Starks to be resentenced).

      Starks responds that the factual findings at his original sentencing were

clearly erroneous. He further argues that his sentencing court failed to consider the

§ 3553(a) factors when imposing his sentence. But these arguments all miss the

mark because a sentencing adjustment pursuant to § 3582(c)(2) “does not


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constitute a de novo resentencing.” United States v. Moreno, 421 F.3d 1217, 1220

(11th Cir. 2005) (per curiam) (quotation marks omitted); see U.S.S.G.

§ 1B1.10(b)(1) (stating that courts should substitute only the amendment and

“leave all other guideline application decisions unaffected”). Thus, previous

factual and legal determinations from the original sentencing cannot be revisited at

this stage in the proceedings. See United States v. Cothran, 106 F.3d 1560, 1562–

63 (11th Cir. 1997); United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000)

(“All other guideline application decisions made during the original sentencing

remain intact.” (quotation marks omitted)). For these reasons, the district court

properly concluded that it lacked authority to reduce Starks’s sentence pursuant to

Amendment 750.

      The government’s motion for summary affirmance is GRANTED, the

judgment of the district court is AFFIRMED, and the government’s motion to stay

the briefing schedule is DENIED as moot.




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