                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 08-15212                   MAY 11, 2009
                         Non-Argument Calendar            THOMAS K. KAHN
                                                              CLERK
                       ________________________

                   D. C. Docket No. 99-00903-CR-PCH

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

TERRENCE SMITH,
a.k.a. Terry,

                                                         Defendant-Appellant.


                       ________________________

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

                             (May 11, 2009)


Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
      Terrence Smith, proceeding pro se, appeals the district court’s order denying

his 18 U.S.C. § 3582(c)(2) motion for sentence reduction. Smith’s § 3582(c)(2)

motion was based on Amendment 591 to the Sentencing Guidelines, which

requires the selection of the applicable guideline be based on the statute of

conviction, rather than judicial findings of relevant conduct not made by the jury.

Smith asserts the offense level for his arson conviction, 18 U.S.C. § 844(i), was

improperly based upon the guideline applicable to first-degree murder, in light of

Amendment 591.

      “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 reduce the sentence “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,” provided that

“such a reduction is consistent with applicable policy statements issued by the

Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The applicable policy

statements provide that a court may reduce a defendant’s sentence, pursuant to

§ 3582(c)(2), where “the guideline range applicable to that defendant has

subsequently been lowered as a result of” a covered amendment to the Guidelines.

U.S.S.G. § 1B1.10(a)(1).



                                           2
      Amendment 591 became effective on November 1, 2000, and Smith was

sentenced on July 30, 2001. Therefore, although the Amendment was made

retroactive by incorporation into U.S.S.G. § 1B1.10(c), it does not constitute a

subsequent amendment within § 3582(c)(2) and the applicable policy statement

because it was already in effect at the time he was sentenced. See United States v.

Stossel, 348 F.3d 1320, 1322 n.2 (11th Cir. 2003) (stating that a pro se inmate’s

motion “could fit under § 3582(c) only if he was arguing his sentence should be

modified based on a subsequent sentencing guideline amendment”). Moreover, we

previously rejected Smith’s challenge to the calculation of his offense level by

reference to the first-degree murder guideline in his direct appeal. See United

States v. Smith, No. 01-14427, manuscript op. at 18-19 (11th Cir. Jan. 31, 2003).

Accordingly, the district court did not err in denying the motion, and we affirm.

      AFFIRMED.




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