                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                          U.S. COURT OF APPEALS
                               No. 08-12273                 ELEVENTH CIRCUIT
                                                               November 5, 2008
                           Non-Argument Calendar
                                                             THOMAS K. KAHN
                         ________________________
                                                                   CLERK

                     D. C. Docket No. 04-80131-CR-KLR

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

CARL VEREEN,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________
                              (November 5, 2008)


Before ANDERSON, HULL and WILSON, Circuit Judges.

PER CURIAM:

     Carl Vereen, a federal prisoner convicted of a crack cocaine offense, appeals
pro se the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for reduction

of sentence. Vereen argues that Amendment 706 to § 2D1.1 of the U.S.

Sentencing Guidelines entitles him to a sentence reduction. He further argues that

because the sentencing guidelines are advisory under United States v. Booker, 543

U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), the district court should have

exercised its discretion and reduced his sentence. Finally, Vereen argues that

recent Supreme Court case law establishes that district courts are not bound by

either the guidelines or minimum statutory sentences. After carefully reviewing

the record and the parties’ briefs, we discern no reversible error.

      “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). A district court may reduce a sentence “based

on a sentencing range that has subsequently been lowered by the Sentencing

Commission pursuant to 28 U.S.C. [§] 994(o) . . . if such a reduction is consistent

with applicable policy statements issued by the Sentencing Commission.” 18

U.S.C. § 3582(c)(2). “A reduction in the defendant’s term of imprisonment is not

consistent with this policy statement and therefore is not authorized under 18

U.S.C. [§] 3582(c)(2) if . . . [the] amendment . . . does not have the effect of



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lowering the defendant’s applicable guideline range.” U.S. S ENTENCING

G UIDELINES M ANUAL § 1B1.10(a)(2)(B) (2007). A sentence “may be imposed at

any point within the applicable guideline range, provided that the sentence . . . is

not less than any statutorily required minimum sentence.” § 5G1.1(c)(2).

Furthermore, the district court may not reduce, pursuant to 18 U.S.C. § 3582(c)(2),

a defendant’s sentence “to a term that is less than the minimum of the amended

guideline range . . . .” U.S. S ENTENCING G UIDELINES M ANUAL § 1B1.10(b)(2)(A).

      Amendment 706, which reduced by two levels the offense levels in crack

cocaine cases, calculated pursuant to § 2D1.1(c), became effective on November 1,

2007. See U.S. S ENTENCING G UIDELINES M ANUAL app. C, amend. 706. The

Amendment was made retroactive as of March 3, 2007 by incorporation into §

1B1.10(c). See U.S. S ENTENCING G UIDELINES M ANUAL app. C, amend. 713 (Supp.

May 1, 2008). Although the retroactive effect of Amendment 706 allows a

defendant whose guideline range was determined under § 2D1.1’s offense level

calculations to seek a reduction in his sentence, a defendant whose original

sentence ultimately was based on something other than the offense level

calculation under § 2D1.1 is precluded from receiving a sentence reduction. See §

1B1.10(a)(2)(B). Amendment 706 does not have the effect of lowering the

applicable guideline range when the defendant received a mandatory minimum



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sentence. See § 1B1.10 cmt. n.1 (noting that a defendant is eligible for a reduction

pursuant to an amendment listed in subsection (c) only if the amendment “ha[s] the

effect of lowering the defendant’s applicable guideline range”).

      Although the guidelines are “effectively advisory,” Booker, 543 U.S. at 245,

125 S. Ct. at 738, the district courts are still bound by statutory minimum

sentences. United States v. Ciskowski, 492 F.3d 1264, 1270 (11th Cir. 2007)

(citations omitted). While district courts may grant variances based on the crack-

to-powder disparity, they are still “constrained by the mandatory minimums

Congress prescribed . . . .” Kimbrough v. United States, 552 U.S. ___, 128 S. Ct.

558, 574, 169 L. Ed. 2d 481 (2007).

      Vereen cannot receive a sentence reduction under 18 U.S.C. § 3582(c)(2)

because his sentence was ultimately based on the ten-year statutory minimum

sentence for a repeat drug felony offender. 21 U.S.C. § 841(b)(1)(B). That ten-

year statutory minimum sentence was unaffected by Amendment 706. See United

States v. Eggersdorf, 126 F.3d 1318, 1320 (11th Cir. 1997) (“Regardless of the

guideline amendment, the language of the statutory minimum is clear and has been

unaltered by Congress.”). Reducing Vereen’s sentence would have been neither

consistent with the guidelines’ policy statement nor authorized under 18 U.S.C. §

3582(c)(2). Accordingly, we affirm the district court’s denial of Vereen’s motion



                                          4
for a reduced sentence.

      AFFIRMED.




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