                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0129n.06

                                            No. 08-5879                                   FILED
                                                                                      Feb 26, 2010
                           UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )    ON APPEAL FROM THE UNITED
v.                                                )    STATES DISTRICT COURT FOR THE
                                                  )    EASTERN DISTRICT OF KENTUCKY
DONNELL MARTIN,                                   )
                                                  )
       Defendant-Appellant.                       )




       Before: MERRITT, COLE, and COOK, Circuit Judges.


       COOK, Circuit Judge. Donnell Martin appeals the district court’s order denying his motion

to reduce his sentence under 18 U.S.C. § 3582(c)(2) after a retroactive crack cocaine amendment

lowered his guidelines range. We affirm.


       In 1997, following Martin’s guilty plea for possession with intent to distribute cocaine base

in violation of 21 U.S.C. § 841(a)(1), a district court sentenced him to a statutorily-mandated twenty

years in prison. Ten years later, in 2007, the Sentencing Commission promulgated Amendment 706,

which reduced the base offense level for most offenses involving cocaine base by two. Soon

thereafter, Amendment 713 made Amendment 706 retroactive by adding it to the list of amendments

in USSG § 1B1.10(c). Ostensibly relying upon the reduction in his base offense level and guidelines

range, Martin filed a motion for sentence modification pursuant to 18 U.S.C. § 3582(c)(2). The
No. 08-5879
United States v. Martin


district court denied the motion on the grounds that the statutory mandatory minimum sentence,

which exceeded the amended guidelines range, prevented a sentence reduction. Martin timely

appealed, arguing exclusively—and for the first time—that, though he remains subject to the

statutory minimum, his sentence violates Fifth Amendment substantive due process because of the

cocaine base/powder sentencing disparity.


       As a preliminary matter, we note that, on appeal, Martin abandons the claim he raised in

district court—that Amendment 706’s effect on his guidelines range required a sentence

reduction—apparently recognizing that the statutory mandatory minimum continues to control on

resentencing. See USSG § 5G1.1(b) (Nov. 1, 2008).


       Martin now argues only that the cocaine/powder disparity violates substantive due process,

a claim he failed to raise below. “[I]n general, ‘issues not presented to the district court but raised

for the first time on appeal are not properly before the court.’” McFarland v. Henderson, 307 F.3d

402, 407 (6th Cir. 2002) (quoting J.C. Wyckoff & Assoc., Inc. v. Standard Fire Ins. Co., 936 F.2d

1474, 1488 (6th Cir. 1991)). And though we retain discretion to appropriately consider some new

issues, McFarland, 307 F.3d at 407, the frivolous nature of Martin’s argument weighs against

exercising it here: “We have consistently held that the crack/powder disparity withstands

constitutional scrutiny, including challenges based on due process, equal protection, and the Eighth

Amendment.” United States v. Berry, 290 F. App’x 784, 793 (6th Cir. 2008) (listing cases).


       But even if we treated his claim as properly raised, we still lack jurisdiction to review it under

                                                 -2-
No. 08-5879
United States v. Martin


§ 3582(c)(2). As a court of limited jurisdiction, we are both bound to consider our own jurisdiction

and permitted to opine only when congressionally authorized. Bender v. Williamsport Area Sch.

Dist., 475 U.S. 534, 541 (1986). Our authority “to resentence a defendant is limited by statute” and

is “expressly prohibit[ed] . . . beyond those exceptions expressly enacted by Congress.” United

States v. Ross, 245 F.3d 577, 586 (6th Cir. 2001). Section 3582(c)(2) allows “modification of a

sentence only where the sentence was ‘based on a sentencing range that has subsequently been

lowered by the Sentencing Commission.’” United States v. Parker, No. 08-6253, 2009 WL

4927949, at *1 (6th Cir. Dec. 21, 2009) (quoting 18 U.S.C. § 3582(c)(2)). Thus, because §

3582(c)(2)’s narrow ambit excludes constitutional challenges, and Martin’s sole complaint on appeal

involves alleged constitutional error, we lack jurisdiction to consider his claim, even if properly

raised.


          We affirm.




                                               -3-
No. 08-5879
United States v. Martin


       MERRITT, Circuit Judge, concurring. I concur in the result in this case. The appellant did

not raise his constitutional claim in the court below, and therefore he has waived the claim. We sit

as a court of appellate review and not as a court of first instance, and we may not reach out to decide

entirely new claims not presented to a trial court. I do not believe that 18 U.S.C. § 3582(c)(2) is a

“subject matter jurisdiction” statute. We have subject matter jurisdiction to consider and apply the

statute as well as the constitutionality of a sentence. I would not dismiss the appeal for “lack of

jurisdiction” under § 3582. I would not employ that reasoning.




                                                 -4-
