                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                                FEB 18, 2010
                               No. 09-10490                      JOHN LEY
                           Non-Argument Calendar                   CLERK
                         ________________________

                      D. C. Docket No. 05-00105-CR-CG

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

DOMINIQUE VALENTINO TURNER,
a.k.a. Rudolph Vernon Turner,

                                                           Defendant-Appellant.


                         ________________________

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

                             (February 18, 2010)

Before BARKETT, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

     Dominique Valentino Turner, a federal prisoner proceeding pro se, appeals
from the district court’s grant of his motion to reduce his sentence pursuant to 18

U.S.C. § 3582(c)(2) and Amendment 706 of the Guidelines. Amendment 706

retroactively reduced the base offense levels applicable to crack-cocaine offenses

under U.S.S.G. § 2D1.1(c).

      The district court granted Turner’s § 3582(c)(2) motion as to his sentence for

conspiracy to traffic in crack cocaine (Count 2), but did not reduce his sentence for

his money laundering offense (Count 3). On appeal, Turner argues that the district

court erred by failing to reduce his sentence for his money laundering offense

because the guideline for crack-cocaine offenses, U.S.S.G. § 2D1.1(c), played a

role in determining his offense level for his money laundering offense. In support

of this argument, he points out that, pursuant to U.S.S.G. § 2S1.1(a)(1), the base

offense level for his money laundering offense should be the same as the offense

level for the underlying offense from which the laundered funds were derived.

Turner argues that because the laundered funds in this case were derived from his

drug trafficking activities, and his offense level for his underlying drug trafficking

offense was calculated under § 2D1.1(c), his offense level for his money

laundering offense was ultimately based on the crack-cocaine guideline in

§ 2D1.1(c).

      We normally review de novo a district court’s determination of the scope of



                                           2
its authority to reduce a defendant’s sentence under 18 U.S.C. § 3582(c)(2).

United States v. James, 548 F.3d 983, 984 (11th Cir. 2008). However, when a

defendant fails to raise an argument before the district court, we review only for

plain error. United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir. 2009).

“Plain error occurs where (1) there is an error; (2) that is plain or obvious; (3)

affecting the defendant’s substantial rights in that it was prejudicial and not

harmless; and (4) that seriously affects the fairness, integrity or public reputation of

the judicial proceedings.” Id. at1244-45 (quotation omitted). In order for an error

to be obvious for purposes of plain error review, “it must be plain under controlling

precedent or in view of the unequivocally clear words of a statute or rule.” United

States v. Lett, 483 F.3d 782, 790 (11th Cir. 2007).

      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 “consistent with applicable

policy statements issued by the Sentencing Commission.” Id. A sentence

modification is not consistent with the Commission’s policy statements where an

amendment “does not have the effect of lowering the defendant’s applicable

guideline range.” U.S.S.G. § 1B1.10(2)(B).



                                            3
      Even if a district court errs in sentencing a defendant, we will affirm if the

error was harmless. See Fed.R.Crim.P. 52(a); United States v. Robles, 408 F.3d

1324, 1327 (11th Cir. 2005). “An error is harmless if it does not affect the

substantial rights of the defendant.” Robles, 408 F.3d at 1327. A

“non-constitutional error is harmless if, viewing the proceedings in their entirety, a

court determines that the error did not affect the sentence, or had but very slight

effect.” United States v. Hornaday, 392 F.3d 1306, 1315-16 (11th Cir. 2004)

(quotation and citations omitted).

      Because Turner failed to raise his argument before the district court, plain

error review applies. Although Turner alleges that he filed a Rule 35 motion

challenging the district court’s determination of his sentence, that motion is not in

the record and was never received by the court; therefore, the challenge to the

district court’s reasoning was not raised below. Turner cannot demonstrate plain

error because he cannot point to controlling case law or a statute in support of his

argument on appeal.

      Moreover, any error the district court may have made in finding that

Amendment 706 did not apply to Turner’s money laundering offense was

harmless. This is because Turner was not eligible for the Count 2 reduction under

Amendment 706 in the first place: he accepted responsibility for 4 kilograms of



                                           4
crack cocaine and 4 kilograms of cocaine. When translated to their marijuana

equivalents, as instructed by § 2D1.1 comment. 10(D), Turner was responsible for

80,800 kilograms of marijuana for a base offense level of 38 – no change from the

court’s determination initially.1

       Accordingly, based on our review of the record and the parties’ briefs on

appeal, we affirm.

       AFFIRMED.




       1
               The Government has not challenged the district court’s reduction of Turner’s
conspiracy to traffic sentence under Amendment 706 on appeal and it is thus waived.

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