                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                          NOVEMBER 18, 2009
                             No. 09-11981                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                 D. C. Docket No. 07-00035-CR-LSC-JEO

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

DANNY DENEASE FORD,
a.k.a. Dawn Ford,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                           (November 18, 2009)

Before DUBINA, Chief Judge, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
      Appellant Danny Denease Ford, a federal prisoner proceeding pro se,

appeals the district court’s order denying her 18 U.S.C. § 3582(c)(2) motion for a

sentence reduction based on Amendment 706 to the Sentencing Guidelines, which

lowered the base offense levels applicable to crack cocaine offenses. On appeal,

Ford argues that she qualified for a sentence reduction but the district court denied

her request without explanation. She asserts that she was entitled to a sentence

reduction under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed.

2d 621 (2005), and Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558, 169

L. Ed. 2d 481 (2007). She also argues that the district court sentenced her

incorrectly because she was coerced into pleading guilty, and the amount of drugs

attributed to her was incorrect. She further asserts that her due process rights were

violated because there was no evidence to prove her guilt, and the drug amount

was not properly calculated.

      “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, 548 F.3d 983,

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

case of a defendant who was 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). Any reduction, however, must be



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“consistent with applicable policy statements issued by the Sentencing

Commission.” Id. The applicable policy statements, found in § 1B1.10, state that

“the court shall not reduce the defendant’s term of imprisonment under 18 U.S.C.

§ 3582(c)(2) and this policy statement to a term that is less than the minimum of

the amended guideline range.” U.S.S.G. § 1B1.10(b)(2)(A).

      Here, we conclude from the record that the district court did not err in

denying Ford’s § 3582(c)(2) motion. Because Ford’s sentence was ultimately

based on the statutory mandatory minimum rather than the amount of crack

cocaine attributed to her, Amendment 706 did not lower the guideline range that

determined her sentence. See U.S.S.G. § 1B1.10, comment. (n.1(A)) (prohibiting a

reduction where an “amendment does not have the effect of lowering the

defendant’s applicable guideline range because of the operation of another

guideline or statutory provision (e.g., a statutory mandatory minimum term of

imprisonment.”); see also United States v. Williams, 549 F.3d 1337, 1339-42 (11th

Cir. 2008) (holding that the district court did not have the authority to grant a

sentence reduction to the defendant because Amendment 706 had no effect on his

statutory minimum term of imprisonment, which had become his guideline range).

The downward departures that Ford received pursuant to U.S.S.G. § 5K1.1 and 18

U.S.C. § 3553(e), do not affect this analysis. See id. at 1340-41 (holding that a



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downward departure, pursuant to § 5K1.1, does not waive a statutory mandatory

minimum sentence and, thereby, entitle a defendant to a sentence reduction under

Amendment 706). Furthermore, our decision in United States v. Melvin, 556 F.3d

1190, 1192 (11th Cir.), cert. denied, 129 S. Ct. 2382 (2009), where we held that

Booker and Kimbrough do not affect the limitations in U.S.S.G. § 1B1.10 on a

judge’s discretion in a § 3582(c)(2) proceeding forecloses Ford’s Booker and

Kimbrough arguments. Additionally, the district court did not err by holding that it

could not consider Ford’s arguments concerning the drug amount and the

voluntariness of her plea because § 3582(c)(2) only permitted the court to

determine whether Amendment 706 lowered Ford’s guideline range. See United

States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005) (holding that § 3582(c)(2)

does not constitute a de novo resentencing and “all original sentencing

determinations remain unchanged with the sole exception of the guideline range

that has been amended since the original sentencing” (internal quotation marks and

alteration omitted)). Accordingly, we affirm the district court’s order denying

Ford’s motion for a sentence reduction.

      AFFIRMED.




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