                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                FEB 11, 2009
                               No. 08-14390                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                      D. C. Docket No. 96-00076-CR-2-4

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

ALBERT MACK,
a.k.a. Al,

                                                            Defendant-Appellant.


                         ________________________

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

                              (February 11, 2009)

Before TJOFLAT, HULL and FAY, Circuit Judges.

PER CURIAM:

     In 1996, Albert Mack pled guilty to conspiracy to possess with intent to
distribute and to distribute heroin, cocaine, and crack cocaine, in violation of 21

U.S.C. § 846. At sentencing, the district court found Mack accountable for four

and one third kilograms of crack cocaine. Because he was responsible for over 1.5

kilograms of the drug, his base offense level was set at 38. That level was

increased by eight levels to level 46 pursuant to U.S.S.G. § § 2D1.1, 3B1.1(a), and

3C1.1. Level 46 coupled with Mack’s criminal history category of II yielded a

Guidelines sentence range of life imprisonment. The Government moved the court

for a downward departure pursuant to U.S.S.G. § 5K1.1. The court granted its

motion and sentenced Mack to a prison term of 264 months. The Government

subsequently filed a Federal Rule of Criminal Procedure 35 motion for a further

reduction, and the court reduced Mack’s prison term to 223 months.

      On May 7, 2008, Mack, proceeding pro se, moved the district court to

reduce his prison term to 168 months pursuant to 18 U.S.C. § 3582(c)(2). He

contended that his sentence should be reduced in light of Guidelines Amendment

706, which is retroactive, the disparity between sentences for cocaine powder and

crack, and the sentencing objectives of 18 U.S.C. § 3553(a). The court denied his

motion. Although Amendment 706 reduced Mack’s previous offense level from

46 to 44, the Guidelines sentence range remained at life imprisonment. Put another

way, the two level reduction provided by Amendment 706 did not affect Mack’s



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sentence range. Mack now appeals the court’s ruling.

      Under § 3582(c)(2), a district court has discretion to reduce the term of

imprisonment of an already incarcerated defendant if that defendant “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). The Sentencing Commission’s policy

statement on retroactive reduction of sentence, U.S.S.G. § 1B.1.10, provides that:

             In a case in which a defendant is serving a term of
             imprisonment, and the guideline range applicable to that
             defendant has subsequently been lowered as a result of an
             amendment to the Guidelines Manual listed in subsection
             (c) below, the court may reduce the defendant’s term of
             imprisonment as provided by 18 U.S.C. 3582(c)(2). As
             required by 18 U.S.C. 3582(c)(2), any such reduction in
             the defendant’s term of imprisonment shall be consistent
             with this policy statement.

U.S.S.G. § 1B1.10(a)(1).

      Amendment 706 reduced the U.S.S.G. § 2D1.1(c) offense levels in crack

cocaine cases. Prior to the amendment, base offense level 38 applied to drug

offenses involving 1.5 kilograms or more of crack cocaine. See e.g., U.S.S.G.

§ 2D1.1(c)(1)(2006). As a result of Amendment 706, base offense level 38 now

applies to an offense involving at least 1.5 but fewer than 4.5 kilograms of crack

cocaine. U.S.S.G. § 2D1.1(c)(1), (2). Thus, although Amendment 706 reduced the



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offense levels in certain crack cocaine cases by two levels, the base offense level

for sentences based on 4.5 kilograms or more of crack cocaine remained

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

Contrary to Mack’s position, a § 3582(c)(2) motion to reduce sentence does not

provide the basis for de novo resentencing. U.S.S.G. § 1B1.10(a)(3).

Accordingly, § 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). A district court should leave intact its previous factual decisions from

the sentencing hearing when deciding whether to reduce a defendant’s sentence.

See United States v. Cothran, 106 F.3d 1560, 1563 (11th Cir. 1997) (upholding

district court’s refusal in a § 3582(c)(2) proceeding to re-examine drug quantity).

      Amendment 706 did not effectively reduce Mack’s Guidelines sentence

range. Therefore, district court did not err in concluding that Mack was not

entitled to a sentence reduction under § 3582(c)(2). The court’s ruling is

accordingly

      AFFIRMED.




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