           Case: 13-13155   Date Filed: 06/10/2014   Page: 1 of 5


                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________


                            No. 13-13155
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:95-cr-00430-WPD-1


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,


                                  versus



ROBERT BUTLER,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                             (June 10, 2014)

Before PRYOR, MARTIN and ANDERSON, Circuit Judges.
              Case: 13-13155     Date Filed: 06/10/2014    Page: 2 of 5


PER CURIAM:

      Robert Butler appeals the district court’s denial of his 18 U.S.C.

§ 3582(c)(2) motion to modify his sentence. Butler argues that his sentence

violates his equal protection and due process rights. In addition, he argues that his

sentence should be reduced because the Fair Sentencing Act (“FSA”) lowers the

statutory sentencing range for his offense, which would affect the calculation of his

guideline ranges as a career offender. Finally, he argues that under Alleyne v.

United States, 570 U.S. ___, 133 S.Ct. 2151 (2013), he cannot be subject to a

sentence greater than the statutory maximum.

A. Equal Protection and Due Process

      In a § 3582(c)(2) proceeding, we review de novo the scope of the district

court’s authority under the Guidelines. See United States v. Moore, 541 F.3d 1323,

1326 (11th Cir. 2008). Under 18 U.S.C. § 3582(c)(2), a court may not modify a

term of imprisonment except “in the case of a defendant who has been sentenced to

a term of imprisonment based on a sentencing range that has subsequently been

lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). In United

States v. Bravo, we held that the district court was correct in declining to consider

the defendant’s Eighth Amendment claim because § 3582(c) does not grant the

district court jurisdiction to consider such extraneous resentencing issues, and the




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defendant’s claim must brought under 28 U.S.C. § 2255. 203 F.3d 778, 782 (11th

Cir. 2000).

      Relief under § 3582(c)(2) is limited to circumstances in which a defendant

was sentenced based on sentencing range that has subsequently been lowered by

the Sentencing Commission, and Butler’s claims of violations of his equal

protection and due process rights do not fall into this category. See 18 U.S.C.

§ 3582(c)(2). Butler’s constitutional claims must be raised in a collateral

proceeding, pursuant to 28 U.S.C. § 2255. See Bravo, 203 F.3d at 782.

B. Fair Sentencing Act

      A district court may not reduce a defendant’s term of imprisonment under

§ 3582(c)(2) unless the defendant’s sentence was based upon a sentencing range

that the Sentencing Commission subsequently lowered, the district court considers

the 18 U.S.C. § 3553(a) factors, and the reduction is consistent with applicable

policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2).

A reduction is not consistent with the Sentencing Commission’s policy statements

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

because of the operation of another guideline provision. U.S.S.G.

§ 1B1.10(a)(2)(B) & comment. (n.1(A)).

      In United States v. Berry, we rejected the defendant’s argument that he was

eligible for a sentence reduction under the FSA because the FSA was not a


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guidelines amendment by the Sentencing Commission, but a statutory amendment

by Congress, and did not serve as a basis for a § 3582(c)(2) sentence reduction.

701 F.3d 374, 377 (11th Cir. 2012). Furthermore, we concluded that the

defendant’s claim failed because the district court sentenced him before the FSA’s

enactment, and the FSA’s mandatory minimums did not retroactively apply under

such circumstances. See id. at 377-78.

      A § 3582(c)(2) motion to reduce a sentence does not provide a basis for de

novo resentencing. U.S.S.G. § 1B1.10(a)(3). Accordingly, the district court must

maintain all original sentencing determinations with the sole exception of applying

the relevant amended guideline range. United States v. Bravo, 203 F.3d 778, 780-

81 (11th Cir. 2000).

      Butler was not entitled to relief under the FSA because the FSA is not a

guidelines amendment by the Sentencing Commission, and therefore, cannot serve

as the basis for a sentence reduction under § 3582(c)(2). See Berry, 701 F.3d at

377. Furthermore, Butler was sentenced before the effective date of the act, and it

is not retroactively applicable to him. Id. at 377-78.

      In addition, Butler’s argument under Alleyne v. United States, 570 U.S. ___,

133 S.Ct. 2151 (2013), fails because the determinations by the jury are not

relevant to this proceeding. The drug quantity determined at Butler’s original

sentencing proceeding applies in his § 3582 proceeding, and furthermore,


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§ 3582(c) does not provide a basis for relief based on a challenge to Butler’s

conviction. Accordingly, we affirm the denial of Butler’s § 3582 motion.

AFFIRMED.




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