                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                             DECEMBER 28, 2009
                               No. 09-11232                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                 D. C. Docket No. 96-00015-CR-FTM-29-DNF

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

TIMMY BENITEZ,

                                                            Defendant-Appellant.


                         ________________________

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

                              (December 28, 2009)

Before BARKETT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

     Timmy Benitez appeals the district court’s denial of his motion for a reduced
sentence, pursuant to 18 U.S.C. § 3582(c)(2), based on Amendment 706 to the

Sentencing Guidelines, which reduced base offense levels applicable to crack

cocaine offenses. Benitez argues that the district court erred in finding that the

sentencing court held him accountable for more than 4.5 kilograms of crack

cocaine and therefore was ineligible for a reduction of his sentence pursuant to

Amendment 706.

      “We review de novo a district court’s conclusions about the scope of its

legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d

983, 984 (11th Cir. 2008). A district court may modify a term of imprisonment in

the case of a defendant who was sentenced based on a sentencing range that

subsequently has been lowered by the Sentencing Commission. 18 U.S.C.

§ 3582(c)(2). A reduction of a term of imprisonment is not authorized under

§ 3582(c)(2) if the retroactive amendment does not have the effect of lowering the

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

      At the time Benitez was sentenced, a defendant was assigned a base offense

level of 38 for any offense that involved 1.5 kilograms or more of crack cocaine.

As a result of Amendment 706, a base offense level of 36 now applies to offenses

that involve quantities of crack cocaine of at least 1.5 kilograms but less than 4.5

kilograms and a base offense level of 38 still applies to quantities above 4.5



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kilograms. See United States v. Jones, 548 F.3d 1366, 1369 (11th Cir. 2008).

Thus, Amendment 706 did not change the base offense level for an offense

involving more than 4.5 kilograms of cocaine, and hence, does not have the effect

of lowering a defendant’s guideline range for those defendants who were sentenced

based on quantities above 4.5 kilograms. Id.

      In Benitez’s case, the sentencing court adopted, without objection by

Benitez, all of the findings in the presentence investigation report (PSI), including

that the conspiracy distributed more than 53 kilograms of cocaine, that Benitez was

a manager or supervisor in the conspiracy, and that he personally “sold well over

1.5 kilograms of cocaine base.” According to Benitez there is at least ambiguity as

to the amount of cocaine base that the sentencing court attributed to him because

any amount over 1.5 kilograms was immaterial to the calculation of his original

sentence, given that, at that time, a base offense level of 38 applied to all amounts

over 1.5 kilograms. Benitez’s argument, however, is foreclosed by Paragraph 57

of the PSI, which in discussing the sentencing guidelines’ provisions on relevant

conduct explicitly states, “Therefore, the defendant is held accountable for all of

the drug distribution involved in the instant conspiracy.” (emphasis added). We

find that this statement unambiguously attributes 53 kilograms of cocaine base to

Benitez.



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      Thus, because the sentencing court held Benitez accountable for more than

4.5 kilograms of crack cocaine, Amendment 706 does not have the effect of

lowering his guideline sentencing range and the district court did not err in denying

his request for resentencing under § 3582(c)(2).

      Benitez’s additional arguments, that the district court’s order denying his

§ 3582(c)(2) motion violated Apprendi and that the district court should have

exercised its discretion under Booker and reduced his sentence based on its

consideration of the § 3553(a) factors, are foreclosed by this circuit’s precedent.

See United States v. Melvin, 556 F.3d 1190, 1190 (11th Cir. 2009) (holding that

Booker does not apply to § 3582(c)(2) proceedings) and United States v. Bravo,

203 F.3d 778, 782 (11th Cir. 2000) (holding that a district court may not consider

extraneous sentencing issues, including constitutional claims, during § 3582(c)(2)

proceedings).

      AFFIRMED.




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