                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                          FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                            ________________________ ELEVENTH CIRCUIT
                                                             OCTOBER 19, 2007
                                 No. 06-15155                THOMAS K. KAHN
                             Non-Argument Calendar               CLERK
                           ________________________

                     D. C. Docket No. 95-00728-CR-DTKH

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellee,

                                     versus

REGGIE WHITE,
a.k.a. Reggie A. White,

                                                        Defendant-Appellant.


                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________

                                (October 19, 2007)


Before BIRCH, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
      Reggie White appeals his reduced 204-month sentence, which was imposed

following the Government’s second motion to reduce sentence, pursuant to Federal

Rule of Criminal Procedure 35(b). White was originally sentenced prior to

Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). He contends the district court, in

deciding the appropriate reduction under Rule 35, should have applied the law in

effect at the time of the “new and separate re-sentencing,” which would have

prohibited, under Apprendi and its progeny, a life-sentence starting point. Instead,

he argues, the district court should have used, as “the starting point,” 35 years’

imprisonment, i.e., the maximum constitutionally permissible sentence. White

asserts the district court erred by mischaracterizing his argument as a collateral

attack on his original sentence and finding it could not take into consideration the

fact his original sentence was “achieved only through a violation of [his]

constitutional rights.”

      Ordinarily, the district court’s decision to grant or deny a Rule 35(b) motion

is a discretionary decision that is not subject to appeal. United States v. Manella,

86 F.3d 201, 203 (11th Cir. 1996). In this case, however, White does not challenge

the merits of the district court’s Rule 35(b) determination, but instead asserts his

reduced sentence was imposed in violation of his statutory and constitutional




                                           2
rights, and, therefore, we have jurisdiction to consider his appeal. See id. We

review such questions of law de novo. Id.

      Rule 35(a) provides: “Within 7 days after sentencing, the court may correct a

sentence that resulted from arithmetical, technical, or other clear error.” Fed. R.

Crim. P. 35(a). Rule 35(b), in pertinent part, provides that a the district court may,

upon motion by the government, reduce a sentence for the defendant’s substantial

assistance to the government. See Fed. R. Crim. P. 35(b).

      White’s argument that Rule 35 permits a new sentencing is based on a since-

abrogated version of Rule 35(a) that permitted the district court to correct an illegal

sentence at any time. See Fed. R. Crim. P. 35(a) (1983). Contrary to White’s

assertion, Rule 35(b), by its own terms, provides for a reduction of a sentence, not

the vacating of a sentence and a resentencing. See Fed. R. Crim. P. 35(b). White is

not permitted to have the benefit of Rule 35(a)’s correction of a sentence, which

was foreclosed to him as untimely, simply by subsuming a request for it within his

Rule 35(b) argument.

      Second, White’s argument is essentially an attempt to avoid the prohibitions

against: (1) the retroactive application of Apprendi to cases on collateral review;

and (2) a petitioner bringing a collateral attack against his sentence through Rule

35(b). See McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001);



                                           3
Fernandez v. United States, 941 F.2d 1488, 1492 (11th Cir. 1991). Because he is

no longer permitted to bring a collateral attack on his sentence by making a Rule

35(b) motion himself, White attempts to attack his sentence collaterally through his

response to the Government’s Rule 35(b) motion. He is not permitted to evade the

constraints of amended Rule 35(b) and the rule against the retroactive application

of Apprendi to cases on collateral review by couching his request in terms of the

proper “starting point” for the district court’s reduction “calculus” in the Rule

35(b) motion. Moreover, the only support he cites for the assertion that his

argument is not a collateral attack on his sentence is a case based on the previous

version of Rule 35. See United States v. Shillingford, 586 F.2d 372, 375 (5th Cir.

1978).1

       In conclusion, Apprendi had not been decided when White was sentenced

originally and it is not retroactively applicable to cases on collateral review. Thus,

the district court did not err in using White’s original sentence as a starting point

from which to reduce his sentence for substantial assistance. Accordingly, we

affirm White’s sentence.

       AFFIRMED.



       1
          In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.

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