United States v. Warren Charlton

PER CURIAM: Federal prisoner Warren G. Charlton appeals the district court’s denial of his motion to reduce his sentence, which was brought pursuant to 18 U.S.C. § 3582(c)(1)(B). 1 Charlton’s motion asserts the district court did not have jurisdiction to sentence him beyond the statutory maximum in 21 U.S.C. § 841(b)(1)(D), pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 788, 160 L.Ed.2d 621 (2005). According to Charlton, his sentence was increased based upon facts that were not charged in the indictment or found beyond a reasonable doubt by the jury. The district court denied Charlton’s motion. A district court’s decision of whether to reduce a sentence pursuant to § 3582(c) is reviewed for an abuse of discretion. United States v. Vautier, 144 F.3d 756, 759 n. 3 (11th Cir.1998). Section 3582(c)(1)(B) states: The court may not modify a term of imprisonment once it has been imposed except that— (B) the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure ... *459 18 U.S.C. § 3582(c)(1)(B). According to Rule 35, a court may: (1) correct a sentence that “resulted from arithmetical, technical, or other clear error;” and (2) reduce a sentence to reflect a defendant’s post-sentencing substantial assistance. Fed.R.Crim.P. 35. Charlton’s claim of constitutional error under Booker is not cognizable under § 3582(c)(1)(B). Charlton’s motion essentially constitutes a collateral attack on his original sentence, for which he would need to submit an application to file a second or successive 28 U.S.C. § 2255 motion. We have held, however, that Booker does not apply retroactively to cases on collateral review. Varela v. United States, 400 F.3d 864, 868 (11th Cir.2005). Thus, the district court did not abuse its discretion by denying Charlton’s motion. AFFIRMED. Footnotes [1] On appeal, Charlton also asserts the court should have reduced his sentence pursuant to 18 U.S.C. § 3582(c)(2). Charlton failed to raise this claim in the district court, and we do not consider issues raised for the first time on appeal. United States v. Kent, 175 F.3d 870, 871 n. 1 (11th Cir. 1999).