                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                Aug. 11, 2009
                               No. 08-14529                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                       D. C. Docket No. 91-00111-CR-4

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

JOHNNY JAMES HALL,
a.k.a Johnny Red,

                                                             Defendant-Appellant.


                         ________________________

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

                               (August 11, 2009)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

     Johnny James Hall appeals the district court’s denial of his pro se motion for
a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2). Hall based that motion on

Amendment 706 to the Sentencing Guidelines, which reduced base offense levels

applicable to certain crack cocaine offenses. On appeal, Hall argues that the

district court abused its discretion in determining he was ineligible for a sentence

reduction because nothing in the language of § 3582(c)(2) requires that a

defendant’s guideline range actually be lowered by an amendment, but rather the

sentence must only be based on a subsequently lowered range. He further asserts

that any language in the Guidelines removing authorization to reduce a sentence

from the courts would only be advisory in light of United States v. Booker, 543

U.S. 220, 125 S. Ct. 738 (2005), and Kimbrough v. United States, 552 U.S. 85, 128

S. Ct. 558 (2007). Finally, according to Hall, the district court was required to

consider the 18 U.S.C. § 3553(a) factors in determining whether he qualified for a

sentence reduction.

       Following his conviction for three drug-related offenses, the district court

held Hall accountable for five kilograms of crack cocaine at sentencing. The

district court assigned a base offense level of 38 but applied a two-level

enhancement, giving Hall a total offense level of 40.1 That total offense level,



       1
         According to the Government’s brief on appeal, the district court at sentencing made a
mistake in Hall’s favor insofar as five kilograms of cocaine base should have yielded a base
offense level of 40, not 38.

                                                2
coupled with a criminal history category of I, rendered a Guidelines range of 292

to 365 months. The district court sentenced Hall to 300 months imprisonment.

      “We review a district court’s decision whether to reduce a sentence pursuant

to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing

guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343

(11th Cir. 2003) (citation omitted). However, “we review de novo the district

court’s legal conclusions regarding the scope of its authority under the Sentencing

Guidelines.” United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002) (per

curiam) (citation omitted).

      A district court generally cannot modify a term of imprisonment after it has

been imposed. United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005) (per

curiam). 18 U.S.C. § 3582(c)(2), however, provides for an exception:

             [I]n the case of a defendant who has been sentenced to a
             term of imprisonment based on a sentencing range that
             has subsequently been lowered by the Sentencing
             Commission pursuant to 28 U.S.C. § 944(o), . . . the
             court may reduce the term of imprisonment, after
             considering the factors set forth in [18 U.S.C. § 3553(a)]
             to the extent that they are applicable, if such a reduction
             is consistent with applicable policy statements issued by
             the Sentencing Commission.

18 U.S.C. § 3582(c)(2). Amendment 706 to the Sentencing Guidelines reduced by

two levels the base offense level for crack cocaine offenses that involved less than



                                          3
4.5 kilograms of crack cocaine. U.S. S ENTENCING G UIDELINES M ANUAL app. C,

amend. 706. However, a movant is not entitled to a resentencing pursuant to

Amendment 706 when the provisions of that amendment do not result in a lower

base offense level and Guidelines range. United States v. James, 548 F.3d 983,

986 (11th Cir. 2008) (per curiam).

      Here, the district court did not abuse its discretion in denying Hall’s § 3582

motion because he received a base offense level of 38 based on a finding that he

was accountable for five kilograms of crack cocaine. After Amendment 706, Hall

would still receive a base offense level of 38 because he was held accountable for

more than 4.5 kilograms of crack cocaine. See U.S. S ENTENCING G UIDELINES

M ANUAL § 2D1.1(c)(1). Therefore, Hall was not entitled to a sentence reduction

because Amendment 706 did not lower his base offense level or Guidelines range.

See James 548 F.3d at 986. Furthermore, Hall’s argument that he should be

resentenced pursuant to Booker and Kimbrough is foreclosed by our precedent.

See United States v. Melvin, 556 F.3d 1190, 1192-93 (11th Cir.) (per curiam)

(holding that Booker and Kimbrough are inapplicable to § 3582(c)(2) proceedings),

cert. denied, 129 S. Ct. 2382 (2009). Lastly, because Hall was ineligible for a

sentence reduction, the district court need not have considered the § 3553(a)

factors. See United States v. Bravo, 203 F.3d 778, 780-81 (11th Cir. 2000)



                                          4
(reasoning that the record must demonstrate that the district court considered the

§ 3553(a) factors only if the court first determines to reduce a defendant’s

sentence); see also United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998)

(“Second, in light of the conclusion reached in the first step, the court must

consider the factors listed in § 3553(a) and determine whether or not to reduce the

defendant’s original sentence.”) (emphasis added). As a result, the district court

did not abuse its discretion in denying Hall’s § 3582 motion.

      Accordingly, we affirm.

      AFFIRMED.




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