Appeal from the United States District Court for the Central District of California George H. King, District Judge, Presiding D.C. No. 2:04-cr-00484- GHK-1
The opinion of the court was delivered by: Alarcon, Circuit Judge:
Argued and Submitted September 1, 2011-Pasadena, California
Before: Arthur L. Alarcon, Diarmuid F. O'Scannlain, and Barry G. Silverman, Circuit Judges.
Jerome Sykes appeals from the district court's denial in part of his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). He contends that the district court's modification of his sentence to the 120-month mandatory minimum term pursuant to 21 U.S.C. § 841(b)(1)(A) constituted the application of a new sentence, in violation of Dillon v. United States, 130 S. Ct. 2683 (2010), and that the sentence the court ordered violates Apprendi v. New Jersey, 530 U.S. 466 (2000). We affirm because we conclude that the district court's application of the 120-month mandatory minimum term pursuant to § 841(b)(1)(A) did not constitute the imposition of a new sentence.
On February 24, 2004, Jerome Sykes was indicted in the United States District Court for the District of Nevada on four counts of distribution of a controlled substance. In accordance with a written plea agreement, he pled guilty on May 17, 2004, to Count 1 of the indictment, distribution of at least 5 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii) (1999); and Count 4, distribution of at least 50 grams of a substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii) (1999).
Sykes admitted at his plea hearing that he had, in fact, distributed "at least 50 grams of a mixture or substance that contained cocaine base." The court informed him that it was required to impose a mandatory minimum sentence of five years for Count 1 and ten years for Count 4. Sykes stated that he understood, and confirmed that he still wished to plead guilty.
At his sentencing hearing on August 23, 2004, the district court calculated his mandatory*fn1 Sentencing Guidelines range at 121 to 151 months.*fn2 The district court did not state in that hearing that he was subject to a mandatory minimum term. It sentenced him to a low-end sentence of 121 months.*fn3
On November 1, 2007, the U.S. Sentencing Commission promulgated Amendment 706 to the Sentencing Guidelines. U.S.S.G. app. C, amend. 706 (Supp. 2007). Amendment 706 "modifies drug quantity thresholds in the Drug Quantity Table [of § 2D1.1]" by adjusting those quantities downward two offense levels, "so as to assign, for crack cocaine offenses, base offense levels corresponding to guideline ranges that include the statutory minimum penalties."*fn4 Id. (emphasis omitted). Under Amendment 706, "50 grams of cocaine base are assigned a base offense level of 30 (97 to 121 months at Criminal History Category I, which includes the ten-year (120 month) statutory minimum for such offenses)." Effective May 3, 2008, the Sentencing ...