                                                               [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT            FILED
                            ________________________ U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                   No. 08-11431                FEBRUARY 17, 2009
                               Non-Argument Calendar            THOMAS K. KAHN
                                                                    CLERK
                             ________________________

                        D. C. Docket No. 96-00020-CR-5-LAC

UNITED STATES OF AMERICA,


                                                                     Plaintiff-Appellee,

                                        versus

MARK HARRIS,
a.k.a. Omar Suluki,

                                                               Defendant-Appellant.


                             ________________________

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

                                  (February 17, 2009)

Before TJOFLAT, BLACK and FAY, Circuit Judges.

PER CURIAM:
      On August 14, 1996, a Northern District of Florida grand jury indicted

appellant Mark Harris for conspiracy to possess with intent to distribute crack

cocaine, in violation of 21 U.S.C. § 846. The following February, a jury found him

guilty as charged, and on June 10, 1997, the district court sentenced him to a prison

term of 360 months.

      On March 3, 2008, Harris, relying on United States v. Booker, 543 U.S. 220,

125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Amendment 706 to the Guidelines,

and the sentencing objectives of 18 U.S.C. § 3553(a), moved the district court

pursuant to 18 U.S.C. § 3582(c)(2), to reduce his sentence. The court denied his

motion, concluding (1) that Amendment 706 did not operated to lower his

Guidelines sentence range because, at sentencing, the court had held him

accountable for 20 kilograms of crack cocaine, resulting in a base offense level of

38 (for 4.5 kilograms or more of crack cocaine), and that the amended Drug

Quantity Table still assigned a base offense level of 38 for 4.5 kilograms or more

of the drug, and (2) that Booker was inapplicable. Harris now appeals the court’s

ruling, claiming that the court should have reconsidered his original sentence and

imposed a new sentence in light of Amendment 706 and United States v. Booker

and in consideration of the fact that the Ex Post Facto Clause barred the court’s

application of U.S.S.G. § 1B1.10.



                                          2
       Section 3582(c)(2) of the United States Code grants the district courts

discretion to reduce a term of imprisonment if the “term of imprisonment [was]

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). In such a

case, the court may reduce the term of the sentence after considering the applicable

§ 3553(a) sentencing factors, “if such a reduction is consistent with applicable

policy statements issued by the Sentencing Commission.” Id.

       The Sentencing Commission’s policy statement on retroactive reduction of

sentences, U.S.S.G. § 1B1.10, 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).1 However, a reduction in the term of imprisonment is not

consistent with the Guidelines policy statement, and therefore not authorized by

§ 3582(c)(2), if the “amendment listed in subsection (c) does not have the effect of

lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B);

see also United States v. Armstrong, 347 F.3d 905, 909 (11th Cir. 2003) (stating


       1
        Unless otherwise indicated, all citations are to the version in the November 1, 2008
Guidelines Manual.

                                             3
that only retroactively applicable amendments “that have the effect of lowering the

sentencing range upon which a sentence was based, may be considered for

reduction of a sentence under § 3582(c)(2)”). Accordingly, a sentence reduction is

not authorized where an amendment “is applicable to the defendant . . . but . . .

does not have the effect of lowering the defendant’s applicable guideline range

because of the operation of another guideline or statutory provision (e.g., a

statutory mandatory minimum term of imprisonment).” U.S.S.G. § 1B1.10,

comment. (n.1(A)).

      Amendment 706 reduced offense levels in certain crack cocaine cases by

two levels, as reflected in the drug quantity table in U.S.S.G. § 2D1.1(c). See

U.S.S.G. App. C, Amend. 706. A defendant who was held accountable for 4.5

kilograms or more of crack cocaine is not eligible for a sentence reduction under

§ 3582(c)(2) and Amendment 706 because his base offense level remains at 38,

and, thus, his Guidelines sentence range has not been reduced. United States v.

Jones, No. 08-13298, slip op. at 443-44 (11th Cir. Nov. 19, 2008); accord United

States v. James, 548 F.3d 983, 985-86 (11th Cir. 2008) (holding that defendant was

not entitled to a § 3582(c)(2) sentence reduction when, based on the amount of

crack and powder cocaine he was responsible for and an intervening change in the

Guidelines, his offense level was higher under Amendment 706 than when he was



                                          4
sentenced). Specifically, because the defendant in Jones was responsible for at

least 12 kilograms of crack cocaine, his sentence range was not lowered; hence,

was not eligible for a sentence reduction. Jones, No. 08-13298, slip op. at 443-44.

      In denying Harris’s § 3583(c)(6) motion, the district court properly adopted

the findings of fact and Guidelines calculations it made when it imposed Harris’s

sentence, including the finding that Harris was responsible for distributing in

excess of 20 kilograms of crack cocaine. Accordingly, the court committed no

error in concluding that he is ineligible for § 3582(c)(2) relief.

      Contrary to Harris’s view of thelaw, a § 3582(c)(2) motion to reduce

sentence does not provide the court with the authority to reconsider the sentence it

previously imposed and to impose a new sentence. That is, the section does not

provide a vehicle for resentencing. U.S.S.G. § 1B1.10(a)(3); United States v.

Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005). Accordingly, § 3582(c)(2) does

not “grant to the court jurisdiction to consider extraneous resentencing issues.”

United States v. Bravo, 203 F.3d 778, 781-82 (11th Cir. 2000). “[A]ll original

sentencing determinations remain unchanged with the sole exception of the

guideline range that has been amended since the original sentencing.” Id. at 781

(emphasis in original).




                                            5
       Assuming that § 3582(c)(2) does not empower a district court to resentence

a defendant, Harris turns to Booker for such authority. His problem is that Booker

is not a retroactively applicable in the Guidelines amendment context or in a

§ 3582(c)(2) proceeding. Moreno, 421 F.3d at 1220. In short, “neither

§ 3582(c)(2) nor Booker provide[] a jurisdictional basis to reduce [a defendant’s]

sentence based on his post-sentencing rehabilitative conduct.” Id. at 1221

(reviewing the Booker argument for plain error).2 The Booker argument affords

Harris no help, so we turn to his Ex Post Facto Clause argument.

       The Constitution provides that “[n]o ex post facto Law shall be passed”

U.S. Const. Art. I, § 9, cl. 3. This clause prohibits the enactment of laws that make

more burdensome the punishment for a crime, after its commission. United States

v. Valladeres, 544 F.3d 1257, 1270 (11th Cir. 2008). To prevail on an ex post

facto claim, a party must demonstrate that (1) the law was retrospective, in that it

applied to events occurring before its enactment, and (2) he was disadvantaged by

it. United States v. Abraham, 386 F.3d 1033, 1038 (11th Cir. 2004). It is clear that

the guidance the Sentencing Commission provides in U.S.S.G. § 1B1.10 does not


       2
          In United States v. James, we rejected a defendant’s argument that the district court should
have recalculated the drug quantities for which he was accountable, in light of Booker, because the
argument was “academic.” 548 F.3d at 986. Moreover, in United States v. Jones we explicitly
rejected an argument, from a defendant who was ineligible for the reduction because of the amount
of cocaine, that the district court nevertheless had the authority to reduce his sentence under Booker.
Jones, No. 08-13298, slip op. at 443-44.

                                                  6
constitute a violation of the Ex Post Facto Clause. Harris’s argument therefore

fails.

         AFFIRMED.




                                         7
