Case: 12-10341         Date Filed: 07/19/2012   Page: 1 of 6

                                                                        [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10341
                                        Non-Argument Calendar
                                      ________________________

                           D.C. Docket No. 4:90-cr-04051-WS-WCS-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,

                                                 versus

NATHANIEL JAMES,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

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

                                            (July 19, 2012)

Before HULL, MARCUS and FAY, Circuit Judges.

PER CURIAM:

         Nathaniel James, proceeding pro se, appeals the district court’s denial of his
              Case: 12-10341     Date Filed: 07/19/2012   Page: 2 of 6

motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). On appeal,

James argues that the district court: (1) should have granted his motion and

assigned him a guideline range of 0 to 240 months’ imprisonment; and

(2) committed an ex post facto violation by raising his base offense level from 36

to 38. For the reasons set forth below, we affirm the district court’s denial of

James’s § 3582(c)(2) motion.

                                          I.

      Between 1984 and 1989, James organized and operated a large drug

organization in Florida that employed 175 people and distributed 10 to 15

kilograms of crack cocaine and hundreds of kilograms of powder cocaine. In

1991, a jury found James guilty of conspiracy to possess with intent to distribute

cocaine and cocaine base, in violation of 21 U.S.C. § 846. Prior to sentencing, a

probation officer completed a presentence investigation report (“PSI”), in which

James was assigned a base offense level of 36, pursuant to U.S.S.G. § 2D1.1(a)(3).

The base offense level was 36 because James was accountable for more than 50

kilograms of powder cocaine or more than 500 grams of crack cocaine. James

received a two-level enhancement for possessing a weapon, pursuant to

§ 2D1.1(b)(1), and a four-level enhancement for his leadership role. Thus, his

total offense level was 42. Based on an offense level of 42 and a criminal history

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category of IV, James’s guideline range was life imprisonment.

         The district court adopted the factual findings and guideline calculations in

the PSI, except that the court determined that James’s criminal history category

was II. Based on a total offense level of 42 and a criminal history category of II,

James’s guideline range was 360 months to life imprisonment. The court

sentenced James to life imprisonment.

         In November 2011, James filed a pro se § 3582(c)(2) motion based on

Amendment 750, in which he argued that, because his indictment did not specify

the amount of drugs involved in his offense, he was eligible for a sentence

reduction. James asserted that, under Amendment 750, his guideline range was 0

to 240 months’ imprisonment. The government responded that the district court

lacked jurisdiction to grant James’s motion because, based on the amount of drugs

in his case, his offense level would actually increase if recalculated. James replied

that the court would commit an ex post facto violation if it increased his guideline

range.

         The district court denied James’s § 3582(c)(2) motion. The court explained

that, at James’s sentencing, it found that the offense involved 10 to 20 kilograms

of crack cocaine. If the revised Sentencing Guidelines were applied to James, he

would have a base offense level of 38 based on that finding. Thus, his base

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offense level was not lowered by Amendment 750, and the court lacked

jurisdiction to reduce James’s sentence under § 3582(c)(2).

                                        II.

      “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, 

, 984 (11th Cir. 2008). A court may only modify a term of imprisonment in

limited circumstances, including where a defendant “has been sentenced to a term

of imprisonment based on a sentencing range that has subsequently been lowered

by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). A defendant is not

entitled to be resentenced under § 3582(c)(2) if the amendment “would not result

in a lower base offense level and guidelines range.” 

.

Additionally, even where a defendant is resentenced, he does not receive a de

novo resentencing hearing. United States v. Bravo, 

, 781 (11th Cir.

2000). Thus, a district court may only substitute the amended guideline. 

other guideline application decisions made during the original

sentencing remain intact.” 

United States v. Cothran,

, 1563 n.5 (11th Cir. 1997) (holding that, in a § 3582(c)(2)

proceeding, “the district court was bound by its previous determination with

respect to the number of marijuana plants that were relevant to [the defendant’s]

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sentence”).

      Amendment 750, effective November 1, 2011, made permanent an

amendment lowering 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. These

amendments altered the Drug Quantity Table in § 2D1.1(c) so that a base offense

level of 38 applies where there was either 150 kilograms or more of cocaine or 8.4

kilograms or more of cocaine base. See id.; U.S.S.G. § 2D1.1(c)(1). In James, an

appeal from the denial of a § 3582(c)(2) motion that James filed in 2008, we held

that James was not entitled to be 

. We explained

that, after applying the amendment at issue, his base offense level would be 38,

which was higher than the base offense level of 36 that he was originally assigned.

correctly denied James’s § 3582(c)(2) motion. Under the

court’s original drug-quantity calculations, James was held responsible for

hundreds of kilograms of cocaine and at least ten kilograms of crack cocaine.

Applying Amendment 750 to these drug quantities would give James a base

offense level of 38, which applies when there is at least 150 kilograms of cocaine

or at least 8.4 kilograms of cocaine base (crack cocaine). See U.S.S.G.

§ 2D1.1(c)(1); U.S.S.G. App. C, Amends. 748, 750. After adding in James’s six

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levels of enhancement, his total offense level and criminal history category would

produce a guideline range of life imprisonment. See U.S.S.G. Ch.5, Pt.A. Thus,

both his base offense level and guideline range would be greater after applying

Amendment 750 than they were originally. Because a defendant is not entitled to

be resentenced under § 3582(c)(2) if applying the amendment “would not result in

a lower base offense level and guidelines range,” the district court correctly denied

James’s § 3582(c)(2) motion. 

.

      Next, James’s argument regarding an ex post facto violation is belied by the

record, as the district court did not raise his base offense level. Rather, the district

court properly denied James’s motion to avoid raising his offense level. Finally,

any other issues James raises regarding the basis for his sentence are without

merit. Even if James was entitled to be resentenced, the court would be bound by

its original determination with respect to the applicable drug quantities. See

n.5. Accordingly, the district court did not err.

      For the foregoing reasons, we affirm the district court’s denial of James’s

§ 3582(c)(2) motion.

      AFFIRMED.




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