                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            MAY 29, 2007
                             No. 06-14080                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                    D. C. Docket No. 99-00074-CR-004

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

                                  versus

JUAN MUZA,

                                                     Defendant-Appellant.


                       ________________________

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

                              (May 29, 2007)

Before BIRCH, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      Juan Muza, proceeding pro se, appeals the district court’s denial of his 18

U.S.C. § 3582(c)(2) motion for a sentence reduction. The district court did not

abuse its discretion in denying Muza’s motion, because it properly found that

Guidelines Amendment 657, which applies exclusively to oxycodone, was

inapplicable because Muza’s case involved a different drug, hydromorphone,

which is known by the trade name Dilaudid. In addition, the district court did not

have jurisdiction to consider Amendments 484 and 517, because they were not

“subsequent” amendments within the meaning of § 3582(c)(2). Accordingly, we

AFFIRM.

                                I. BACKGROUND

      A grand jury indicted Muza and four others for: (1) conspiracy to possess

with intent to distribute more than 4,488 tablets of Dilaudid, a Schedule II

controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 846;

(2) possession with intent to distribute Dilaudid, in violation of 21 U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2; and (3) traveling in interstate commerce with the

intent to possess with intent to distribute Dilaudid, in violation of 18 U.S.C.

§ 1952(a).

      In a jury trial, Muza was found guilty on all three counts. In the presentence

investigation report (“PSI”), the probation officer calculated a base offense level of



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34, pursuant to U.S.S.G. § 2D1.1(c)(3). According to the PSI, Muza was involved

with approximately 27,000 Dilaudid tablets. Each Dilaudid tablet weighed 90

milligrams and contained the controlled substance hydromorphone. Based on the

drug equivalency tables found in § 2D1.1, each gram of hydromorphone was

equivalent to 2.5 kilograms of marijuana and, therefore, Muza was involved with

the equivalent of 6,075 kilograms of marijuana.

      At the sentencing hearing, the district court found that the number of

Dilaudid tablets involved exceeded 14,000, which, based on a per tablet weight of

90 milligrams, was equivalent to 3,150 kilograms of marijuana. The district court

determined, therefore, that Muza had a base offense level of 34. U.S.S.G.

§ 2D1.1(c)(3). The district court sentenced Muza to a term of 292 months of

imprisonment. We affirmed Muza’s convictions and sentence and found no clear

error in the district court’s determination of drug quantity.

      Thereafter, Muza filed a motion to reduce his sentence, pursuant to 18

U.S.C. § 3582(c)(2). Muza argued that Amendments 657, 484, and 517 of the

Sentencing Guidelines applied retroactively to his case and asserted the principal

that drug tablets come in variable dosages, and that only the portion of the tablet

that contains the controlled substance in question should be used to determine the

drug quantity to be used for sentencing purposes. He argued that the Dilaudid



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tablets involved in this case contained only 4 milligrams of hydromorphone, not

the full tablet weight of 90 milligrams that Muza had been held accountable for at

his sentencing. Based on the drug equivalency tables, 4 milligrams of

hydromorphone was equivalent to 350 kilograms of marijuana and, therefore, he

contended, he should have had a base offense level of 26, not 34 as was originally

calculated. After applying the applicable enhancements to an offense level of 26,

Muza would have only been subject to a Guidelines range of 121 to 151 months.

Therefore, Muza asserted that Amendments 657, 484, and 517 required the district

court to reduce his sentence, pursuant to § 3582(c)(2), and that the failure to do so

would constitute an Equal Protection violation. In the alternative, Muza argued

that he was entitled to the rule of lenity because the amendments were ambiguous

as to whether the Guidelines calculation relied on the weight of the tablet or the

actual weight of the controlled substance within the tablet.

      The district court denied Muza’s motion to reduce his sentence. The district

court found that Amendment 657, which altered the drug equivalency tables for

oxycodone, did not apply in this case because Muza was sentenced for offenses

involving hydromorphone (Dilaudid). Further, the court found that Amendment

657 was not ambiguous because it explicitly and repeatedly limits its reach to

oxycodone, and, therefore, the court rejected Muza’s rule of lenity argument. The



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court also found that although Amendments 657, 484, and 517 arguably reflected a

trend towards how the weight of drugs in tablet form should be measured, the

amendments did not apply to the drug hydromorphone, and the court could not

reduce Muza’s sentence based solely on the possibility of future amendments.

      The district court declined to grant Muza leave to proceed in forma pauperis

(“IFP”) on appeal because Muza’s § 3582(c)(2) motion lacked merit. We also

denied Muza leave to proceed IFP, finding that Muza’s argument on appeal was

frivolous, as Muza had failed to state a claim upon which relief could be granted

because Amendment 657 explicitly applies exclusively to oxycodone.

                                 II. DISCUSSION

      Muza argues on appeal that the district court erred in denying his motion to

reduce his sentence because Amendments 657, 484, and 517 demonstrate that only

the actual weight of the controlled substance should be used for purposes of

sentencing. Both oxycodone and hydromorphone are listed in the guidelines as

Schedule I or II opiates and, therefore, he contends, it is an Equal Protection

violation to treat the two drugs differently. He also argues that the buffer portion

of the tablets should be excluded from the total weight. The “crux” of Amendment

657 is that drugs in tablet form, such as hydromorphone (Dilaudid), come in

variable dosages. He argues that the Dilaudid tablets involved in the instant



                                           5
offense contained only 4 milligrams of hydromorphone, not 90 milligrams for

which he was held accountable. Based on 14,000 tablets and a per-tablet weight of

4 milligrams, Muza argues that he should have had a base offense level of only 26.

Applying the applicable enhancements to this base offense level, Muza’s

Guidelines range would be 121 to 151 months and, therefore, he contends, the

sentence actually imposed is substantially prejudicial. He asserts that the district

court had the authority and jurisdiction under § 3582(c)(2) to reduce Muza’s

sentence in response to the amendments. Alternatively, Muza invokes the rule of

lenity because of the ambiguity within the amendments concerning the lack of

distinction between hydromorphone and oxycodone.

      In his reply brief, Muza also argues for the first time that the district court

committed a Booker1 error because it sentenced him under a mandatory guidelines

scheme. Because of this Booker error, he argues, the court never considered his

rule of lenity and Equal Protection arguments. In addition, Muza reasserts his

Equal Protection claim that hydromorphone (Dilaudid), which is a Schedule I or II

opiate like oxycodone, should be treated the same way as oxycodone and,

therefore, the amendments should be applied to his sentence.




      1
          United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005).

                                                6
      As a preliminary matter, because Muza raises his Booker argument for the

first time in his reply brief, that argument is not properly before us. See United

States v. Evans, 473 F.3d 1115, 1120 (11th Cir. 2006).

      A district court’s decision whether to reduce a sentence pursuant to 18

U.S.C. § 3582(c)(2) is reviewed for an abuse of discretion. United States v. White,

305 F.3d 1264, 1267 (11th Cir. 2002) (per curiam) (citation omitted). Section

3582(c)(2) “does not grant to the court jurisdiction to consider extraneous

resentencing issues.” United States v. Bravo, 203 F.3d 778, 782 (11th Cir. 2000).

Instead, § 3582(c)(2) permits a district court to modify an imposed term of

imprisonment “in 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. § 994(o).” 18 U.S.C. §

3582(c)(2).

      Amendment 657, which became effective in November 2003, modified the

way in which the drug oxycodone is measured for federal sentencing purposes.

See U.S.S.G. App. C, Vol. II, Amend. 657. As a result of the amendment, the

actual weight of the oxycodone contained within the tablet should be used for

sentencing purposes. The reason for the amendment was to address

“proportionality issues in the sentencing of oxycodone trafficking offenses.” See



                                           7
id., Reason for Amend. Varying amounts of oxycodone are found in prescription

pain relievers that are generally sold in tablet form. The proportionality issues

arose because different medications contain different formulations and different

amounts of oxycodone may exist in tablets of the same weight.

      Here, the district court did not abuse its discretion in denying Muza’s motion

for a modification of his sentence, pursuant to Amendment 657, because that

amendment has no application to this case. Muza does not dispute that the drug

involved in this case was hydromorphone (Dilaudid). Amendment 657 is

inapplicable, because the amendment applies exclusively and explicitly to

oxycodone. See U.S.S.G. App. C, Vol. II, Amend. 657. Moreover, the district

court correctly determined that Amendment 657 was unambiguous and, therefore,

Muza was not entitled to the rule of lenity. See United States v. Jeter, 329 F.3d

1229, 1230 (11th Cir. 2003) (per curiam) (holding that the rule of lenity applies to

the Sentencing Guidelines where there is ambiguity).

      As to Muza’s arguments based upon Amendments 484 and 517, because

Muza was sentenced in 2000, Amendment 484, which became effective in

November 1993, and Amendment 517, which became effective in November 1995,

were not “subsequent” amendments. See 18 U.S.C. § 3582(c)(2); U.S.S.G. App.

C, Vol. I, Amends. 484, 517. Thus the district court did not have jurisdiction to



                                          8
consider them. See United States v. Stossel, 348 F.3d 1320, 1322 n.2 (11th Cir.

2003) (per curiam) (stating that a motion could be addressed under § 3582(c) only

if the appellant was arguing that his sentence should be modified “based on a

subsequent sentencing guideline amendment”).

      Finally, the district court was correct to decline to consider Muza’s Equal

Protection argument because the court was without jurisdiction to consider an

extraneous issue. See Bravo, 203 F.3d at 782 (finding that the district court

properly declined to consider the appellant’s Eighth Amendment argument,

because § 3582(c) does not grant jurisdiction to consider “extraneous resentencing

issues”).

                               III. CONCLUSION

      Based upon the facts and law set out above, we find that the district court did

not abuse its discretion in denying Muza’s motion for a sentence reduction

pursuant to 18 U.S.C. § 3582(c)(2).

AFFIRMED.




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