                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-12726                ELEVENTH CIRCUIT
                                                            MARCH 18, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                 D. C. Docket No. 89-01018-CR-1-MMP-2

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

WILNER VAL SAINT,

                                                         Defendant-Appellant.


                       ________________________

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

                             (March 18, 2009)



Before BLACK, CARNES and WILSON, Circuit Judges.

PER CURIAM:
       Wilner Val Saint, a federal prisoner convicted of conspiracy to possess with

the intent to distribute cocaine and cocaine base, appeals the district court’s denial

of his pro se 18 U.S.C. § 3582(c)(2) motion for reduction of sentence. On appeal,

Val Saint argues the district court should have reduced his sentence under

Amendments 503, 505, 506, 706, and 711 to the Sentencing Guidelines, because

they lowered his Guidelines range. For the same reason, he also argues the district

court should have reduced his sentence based on the Supreme Court’s holdings in

Kimbrough v. United States, 128 S. Ct. 558 (2007), United States v. Booker, 125

S. Ct. 738 (2005), and Cunnigham v. California, 127 S. Ct. 856 (2007).

       We generally review a district court’s decision to deny reduction of a

defendant’s sentence pursuant to § 3582(c)(2) for an abuse of discretion. United

States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005). “When a defendant fails

to raise an error in the district court, we may not correct the error unless there is:

(1) error, (2) that is plain, and (3) that affects substantial rights.” Id. at 1220

(quotation omitted).

       Under § 3582(c)(2), a district court may not reduce the term of

imprisonment of an already incarcerated defendant unless that defendant has been

sentenced pursuant to a Guidelines range “that has subsequently been lowered by

the Sentencing Commission[.]” 18 U.S.C. § 3582(c)(2). “[F]or a sentence to be



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reduced retroactively under § 3582(c)(2), a court must determine whether there has

been an amendment to the Sentencing Guidelines that has lowered the Guidelines

range applicable to that sentence and is listed under [U.S.S.G.] § 1B1.10(c).”

United States v. Armstrong, 347 F.3d 905, 907 (11th Cir. 2003).

      For example, “a reduction under § 3582(c)(2) is not authorized where ‘the

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

Guidelines range because of the operation of another guideline[.]’” United States

v. Moore, 541 F.3d 1323, 1327-28 (11th Cir. 2008) (quoting U.S.S.G. § 1B1.10,

comment. (n.1(A)) (emphasis omitted)). Similarly, such a reduction is not

authorized if none of the listed amendments apply to the defendant. See U.S.S.G.

§ 1B1.10, comment. (n.1(A)). Accordingly, we have upheld the denial of a

§ 3582(c)(2) motion based on an amendment that qualified “for reduction

purposes,” but did “not apply factually in [the defendant’s] case.” Armstrong, 347

F.3d at 908.

                                          I.

      Amendment 706 lowered the base offense levels under the Sentencing

Guidelines for cocaine base offenses. It also altered Application Note 10(D) of the

Commentary to U.S.S.G. § 2D1.1 to change the method of calculating the offense

level for offenses involving cocaine base and other types of drugs. See U.S.S.G.



                                          3
App. C, Amends. 706, 713. In particular, it instructed district courts to:

(1) determine the base offense level for the other substance; (2) apply that base

offense level to a “marijuana equivalency” table and convert the cocaine base into

marijuana; (3) convert the other substance into marijuana; and (4) add the

marijuana quantities together to determine the combined base offense level.

U.S.S.G. App. C, Amend. 706.

      Amendment 711, however, reversed Amendment 706 on this point, and,

instead, directed courts to: (1) determine the base offense level for the amount of

cocaine base involved; (2) apply that base offense level to a “marijuana

equivalency” table and convert the cocaine base into marijuana; (3) determine the

marijuana equivalency for the other substance; and (4) add together all of the

marijuana amounts and determine the combined base offense level. See U.S.S.G.

App. C, Amend. 711.

      Here, the district court did not abuse its discretion by denying Val Saint’s

motion to reduce his sentence under Amendments 706 and 711. Based on the 500

grams of cocaine base and 50 kilograms of powder cocaine attributed to Val Saint,

his base offense level would remain 36, his adjusted offense level would continue

to be 44, his criminal history category of III would be unaffected, and his

Guidelines range would remain life imprisonment.



                                          4
                                          II.

      Amendment 505, effective November 1, 1994, altered the upper limit of the

Drug Quantity Table in U.S.S.G. § 2D1.1(c) so that the base offense level for 150

kilograms or more of cocaine, and 1.5 kilograms or more of cocaine base, became

38. See U.S.S.G. App. C, Amend. 505. Amendment 506, effective November 1,

1994, altered the definition of “offense statutory maximum” as it applied to the

career offender guidelines in U.S.S.G. § 4B1.1.

      While Amendments 505 and 506 fall within the scope of a § 3582(c)(2)

motion, they do not apply to Val Saint. First, Amendment 505 has no effect on Val

Saint because it only altered the Drug Quantity Table for base offense levels of 38

and above, whereas his base offense level was 36. Second, because Val Saint was

not sentenced as a career offender, Amendment 506 does not apply. Accordingly,

the district court lacked jurisdiction to reduce Val Saint’s sentence pursuant to

Amendments 505 and 506.

                                          III.

      Amendment 503, effective November 1, 1994, clarified U.S.S.G. § 1B1.13,

which provided a method for calculating a defendant’s specific offense

characteristics, by mandating that the actions of co-conspirators before the

defendant joined the conspiracy could not amount to relevant conduct. See



                                           5
U.S.S.G. App C, Amend. 503. Kimbrough held that district courts possess the

authority to deviate from the 100-to-1 equivalency ratio of cocaine base to powder

cocaine under the Sentencing Guidelines. Kimbrough, 128 S. Ct. at 575.

      Both Amendment 503 and Kimbrough fall outside the scope of § 3582(c)(2).

First, because Amendment 503 is not listed in U.S.S.G. § 1B1.10(c), it does not

apply retroactively. See Armstrong, 347 F.3d at 907-08. Second, because the

Supreme Court’s holding in Kimbrough does not amount to an amendment to the

Sentencing Guidelines, it does not afford relief under § 3582(c)(2). See id. at 907.

Thus, the district court lacked jurisdiction to reduce Saint’s sentence on these

grounds, and it did not abuse its discretion by denying his § 3582(c)(2) motion.

                                          IV.

      In Booker, the Supreme Court re-affirmed that “[a]ny fact (other than a prior

conviction) which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.” Booker,

125 S. Ct. at 756. Cunningham reiterated this principle. See Cunningham, 127 S.

Ct. at 860.

      Val Saint raises the applicability of Booker and Cunningham for the first

time on appeal, so we review the district court’s ruling for plain error. See



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Moreno, 421 F.3d at 1220. The district court did not plainly err by refusing to

reduce Saint’s sentence based on these cases, because they are not amendments to

the Sentencing Guidelines and they fall outside the scope of § 3582(c)(2).1

Accordingly, we affirm.

       AFFIRMED.




       1
           Because Val Saint’s sentence was not reduced, we need not address his argument for a
departure below an amended Guidelines range based on Kimbrough. But see United States v.
Melvin, ___ F.3d ___, No. 08-13497, 2009 WL 236053, at *1 (11th Cir. Feb. 3, 2009) (holding a
district court does not have discretion in a § 3582(c)(2) proceeding to reduce a defendant’s
sentence below the amended Guidelines range if the defendant’s original sentence fell within the
then-applicable Guidelines range).

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