                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                     FILED
                          ________________________          U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                December 17, 2008
                                No. 08-11377                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                    D. C. Docket No. 05-00125-CR-J-32-TEM

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

ARVIN ROWNELL JOHNSON,

                                                             Defendant-Appellant.

                          ________________________

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

                              (December 17, 2008)

Before BLACK, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

      Arvin Rownell Johnson, proceeding pro se, appeals the district court’s denial

of his motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). On
appeal, Johnson argues that the district court was permitted to lower his sentence

under 18 U.S.C. § 3582(c)(2) because the mandatory statutory minimum term of

imprisonment is no longer a bar now that he is eligible for a reduced sentence

based on Amendment 706, which reduced the offense levels in crack cocaine cases.

After careful review, we affirm.

      “In a § 3582(c)(2) proceeding, we review de novo the district court’s legal

conclusions regarding the scope of its authority under the Sentencing Guidelines.”

United States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008) (quotations

omitted). Section 3582(c)(2) prohibits a court from modifying a term of

imprisonment after it has been imposed 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 pursuant to 28 U.S.C. §

994(o).” 18 U.S.C. § 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1) (Supp. May 1,

2008). Amendment 706, which reduced the offense levels in crack cocaine cases

calculated pursuant to § 2D1.1(c) by two levels, became effective November 1,

2007. See U.S.S.G. App. C, Amend. 706 (2007). The Amendment was made

retroactive as of March 3, 2007, by incorporation into U.S.S.G. § 1B1.10(c). See

U.S.S.G. App. C, Amend. 713 (Supp. May 1, 2008).




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      A defendant whose original sentence ultimately was based on something

other than the offense level calculation under § 2D1.1 is precluded from receiving

a sentence reduction, because the amendment does not have the effect of lowering

the applicable Guideline range. See U.S.S.G. § 1B1.10(a)(2)(B) (Supp. May 1,

2008). This occurs where, as here, the defendant was sentenced to a statutory

mandatory minimum sentence. See U.S.S.G. § 1B1.10, comment. (n.1(A)) (Supp.

May 1, 2008) (noting that defendant is not eligible for reduction, even if

amendment is listed in subsection (c), if “the amendment 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).”) (emphasis added); see also United States v. Eggersdorf, 126

F.3d 1318, 1320 (11th Cir. 1997) (“The statute controls in the event of a conflict

between the guideline and the statute.”).

      In this case, the district court did not err by finding that it lacked authority to

reduce Johnson’s sentence under § 3582(c)(2) and Amendment 706. The court at

the original sentencing varied downward to the mandatory statutory minimum of

120 months’ imprisonment, the shortest term permitted by the penalty statute.

Thus, a further reduction is not permitted.

      AFFIRMED.



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