                                                            [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 08-14819                    May 27, 2009
                           Non-Argument Calendar             THOMAS K. KAHN
                         ________________________                CLERK


                     D. C. Docket No. 92-00170-CR-BH-3

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

EDDIE OLIVER, JR.,
a.k.a. Bo Diddley,

                                                           Defendant-Appellant.

                         ________________________

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

                                (May 27, 2009)

Before BLACK, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

     Eddie Oliver, Jr, proceeding pro se, appeals from the district court’s denial

of his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence based on
Amendments 439, 505, and 706 to the Sentencing Guidelines. On appeal, Oliver

argues that the district court abused its discretion in denying his motion because

Amendments 439, 505 and 706 should have been applied to his sentence. After

thorough review, we affirm.

      “We review a district court’s decision not to reduce a sentence pursuant to §

3582(c)(2) for abuse of discretion.” United States v. Moreno, 421 F.3d 1217, 1219

(11th Cir. 2005), cert. denied, 547 U.S. 1050 (2006). A district court may abuse its

discretion by making an error of law. United States v. Brown, 332 F.3d 1341,

1343 (11th Cir. 2003) (citation omitted). If the district court errs in applying the

guidelines, we must nevertheless ignore the errors if they were harmless. United

States v. Foley, 508 F.3d 627, 634 (11th Cir. 2007). “[R]emand is required only if

the sentence was imposed as a result of an incorrect application of the Guidelines.”

Williams v. United States, 503 U.S. 193, 202-03 (1992) (quotations and emphasis

omitted).

      Section 3582(c)(2) gives retroactive effect to particular amendments to the

Sentencing Guidelines that subsequently lower the sentencing range upon which an

earlier sentence was based. United States v. Pringle, 350 F.3d 1172, 1176 (11th

Cir. 2003). The relevant policy statement on retroactive reduction of sentences

provides that a sentence reduction is authorized under § 3582(c)(2) only where the



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applicable amendment to the Guidelines Manual is enumerated in § 1B1.10(c). See

U.S.S.G. § 1B1.10(a); United States v. Pelaez, 196 F.3d 1203, 1205 n.3 (11th Cir.

1999) (holding that only the amendments listed in § 1B1.10(c) may be applied

retroactively using a § 3582(c)(2) motion).       Even if an amendment applies

retroactively, however, a reduction in the term of imprisonment is not authorized if

the amendment does not have the effect of lowering the applicable guideline range.

U.S.S.G. § 1B1.10(a)(2)(B); U.S.S.G. § 1B1.10 comment (n.1).

      Amendment 505 amended U.S.S.G. § 2D1.1(c), by, inter alia, setting the

base offense level for 1.5 kilograms or more of cocaine base at 38, where,

previously, the level was as high as 42. U.S.S.G. app. C, amend. 505 (2006). The

Sentencing Commission’s policy statement on retroactive reduction of sentences,

U.S.S.G. § 1B1.10, indicates that Amendment 505 is retroactively applicable.

U.S.S.G. § 1B1.10(c).      Amendment 505 became effective after Oliver was

sentenced.

      Amendment 706, which also became effective after Oliver was sentenced

and applies retroactively, provides for a two-level reduction in the base offense

level assigned to certain levels of crack cocaine listed in the Drug Quantity Table

in U.S.S.G. § 2D1.1. U.S.S.G. App. C., Amend. 706; U.S.S.G. § 1B1.10(c).

Before Amendment 706 took effect, a defendant received a base offense level of 38



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under § 2D1.1(c)(1) if he was held accountable for 1.5 kilograms or more of crack

cocaine; under the amended version of § 2D1.1(c)(1), however, a defendant

receives a base offense level of 38 if he is held accountable for 4.5 kilograms or

more of crack cocaine. See U.S.S.G. App. C, Amend. 706 (2007).

      On the record here, we are not persuaded by Oliver’s argument that the

district court abused its discretion in denying his § 3582 motion. As an initial

matter, Amendment 439 is not listed in the Sentencing Commission’s policy

statement on the retroactive reduction in sentences. See U.S.S.G. § 1B1.10(c).

Therefore, Amendment 439 may not be applied retroactively through a

§ 3582(c)(2) motion, see Pelaez, 196 F.3d at 1205 n.3, and, therefore, any error of

the district court in failing to consider Amendment 439 was harmless.

      We likewise reject Oliver’s claim regarding Amendment 505. As the record

shows, Oliver’s total offense level was calculated to be 45, but because U.S.S.G. §

5A n.2 stated that an offense level of more than 43 was to be treated as an offense

level of 43, Oliver’s total offense level was set at 43. Based on a total offense level

of 43, and a criminal history category of III, the guideline range was life

imprisonment. Even with a reduction of Oliver’s base offense level to 38, with the

enhancements applied at sentencing in 1993, Oliver’s offense level would be 43.

With an offense level of 43, and a criminal history category of III, Oliver’s



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sentencing range remains life imprisonment.       See U.S.S.G. Chapter 5, Part A

(1993). Thus, any error by the district court in denying Oliver eligibility for relief

under Amendment 505 was harmless.

      Nor would Amendment 706 affect his sentence. In Oliver’s § 3582 motion,

he conceded that he was held accountable for 11.23 kilograms of cocaine base.

Therefore, Oliver’s base offense level would remain unchanged even after

Amendment 706 revised § 2D1.1(c)(1) because he was held responsible for more

than 4.5 kilograms of crack cocaine. In short, Oliver’s sentence was not based on a

range subsequently lowered by Amendment 706 and the district court lacked

authority to grant him a sentencing reduction under § 3582(c)(2) based on

Amendment 706.       See U.S.S.G. § 1B1.10(a)(2)(B); see also United States v.

Moore, 541 F.3d 1323, 1330 (11th Cir. 2008) (holding that the district court lacked

authority under § 3582(c)(2) to grant a sentencing reduction to defendants who

were career offenders sentenced under U.S.S.G. § 4B1.1 because Amendment 706

would not ultimately affect their guideline ranges), cert. denied, McFadden v.

United States, 129 S. Ct. 965 (2009), and cert. denied, __ S. Ct. __ (U.S.

Mar. 9, 2009) (No. 08-8554); United States v. Walker, 301 F. App’x 844 (11th Cir.

2008) (unpublished opinion) (holding that the district court lacked authority under




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§ 3582(c)(2) to grant a sentencing reduction to a defendant who was held

accountable for more than 4.5 kilograms of crack cocaine).

      Accordingly, we affirm.

      AFFIRMED.




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