                                                              [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT            FILED
                            ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                    No. 05-16015                 JUNE 29, 2006
                                Non-Argument Calendar          THOMAS K. KAHN
                                                                   CLERK
                              ________________________

                      D. C. Docket No. 88-00215-CR-J-12HTS

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,

                                       versus

BILLY JOE MCCLAIN,
a.k.a. Billy,
a.k.a. Bill,
a.k.a. Bo,
a.k.a. Billion Dollar Bill,

                                                      Defendant-Appellant.


                              ________________________

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

                                   (June 29, 2006)

Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:

      Appellant Billy Joe McClain appeals, pro se, the district court’s denials of

his motion to modify his sentence, filed pursuant to 18 U.S.C. §§ 3582(c)(1)(B)

and 3559(c)(7), and his petition for rehearing from the denial of that motion.

McClain argues that, under § 3559(c)(7), he is entitled to resentencing because he

allegedly received a mandatory life sentence and this sentence was based on a prior

conviction that was later overturned. McClain also contends that the district court

committed statutory error in violation of United States v. Booker, 543 U.S. 220

(2005) by relying on extra-verdict enhancements.

      We review both a motion to reconsider and a district court’s decision

whether to reduce a sentence pursuant to 18 U.S.C. § 3582(c) for an abuse of

discretion. United States v. Simms, 385 F.3d 1347, 1356 (11th Cir. 2004) (motion

to reconsider); see United States v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003)

(reviewing a motion to modify sentence under 18 U.S.C. § 3582(c)(2), based on a

subsequent change in the Sentencing Guidelines). “A district court by definition

abuses its discretion when it makes an error of law.” Brown, 332 F.3d at 1343

(quotation omitted).

      Pursuant to 18 U.S.C. § 3582(c)(1)(B), a court may modify a sentence “to

the extent otherwise expressly permitted by statute . . . .” Under 18 U.S.C.



                                          2
§ 3559(c), a person is subject to mandatory life imprisonment based on certain

prior convictions, and a person may be resentenced if a prior conviction used to

impose mandatory life imprisonment is overturned as unconstitutional or on the

basis of innocence. The statute provides in relevant part:

      (c) Imprisonment of certain violent felons.–
             (1) Mandatory life imprisonment. Notwithstanding any other
      provision of law, a person who is convicted in a court of the United
      States of a serious violent felony shall be sentenced to life
      imprisonment if–
                    (A) the person has been convicted (and those convictions
                    have become final) on separate prior occasions in a court
                    of the United States or of a State of–
                           (i) 2 or more serious violent felonies; or
                           (ii) one or more serious violent felonies and one or
                           more serious drug offenses; and
                    (B) each serious violent felony or serious drug offense
                    used as a basis for sentencing under this subsection, other
                    than the first, was committed after the defendant’s
                    conviction of the preceding serious violent felony or
                    serious drug offense.

             ....

             (7) Resentencing upon overturning of prior conviction.–If the
      conviction for a serious violent felony or serious drug offense that was
      a basis for sentencing under this subsection is found, pursuant to any
      appropriate State or Federal procedure, to be unconstitutional or is
      vitiated on the explicit basis of innocence, or if the convicted person is
      pardoned on the explicit basis of innocence, the person serving a
      sentence imposed under this subsection shall be resentenced to any
      sentence that was available at the time of the original sentencing.

18 U.S.C. § 3559. This subsection of the statute, known as the federal “three-



                                          3
strikes law,” became effective on September 13, 1994, with the passage of the

Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322,

§ 70001, 108 Stat. 1796. See also United States v. Abraham, 386 F.3d 1033, 1037

(11th Cir. 2004), cert. denied, 126 S. Ct. 417 (2005).

      In this case, the record demonstrates that the district court did not impose a

mandatory life sentence, but rather it imposed a sentence at the high-end of the

applicable guideline range. The district court expressly stated–both at McClain’s

original sentencing hearing and at a sentencing rehearing based on the overturned

state conviction–that McClain’s guideline imprisonment range was 360 months to

life and imposed a sentence at the high-end due to the gravity of McClain’s crimes.

Moreover, McClain received his original sentence five years before the enactment

of § 3559, and therefore, his argument that he was sentenced to mandatory life

imprisonment under that provision is without merit. The district court imposed

McClain’s sentence in 1989, and in 1994, Congress enacted 18 U.S.C. § 3559.

Because § 3559(c)(7) only applies to defendants sentenced under that subsection

and McClain was not sentenced under it, any relief under § 3559(c)(7) does not

apply to McClain. Accordingly, we conclude that the district court did not abuse

its discretion in denying McClain’s motion to modify his sentence.

      McClain makes no argument that the district court abused its discretion by



                                          4
denying his motion for reconsideration, and thus, he abandoned any argument

related to this denial. United States v. Dockery, 401 F.3d 1261, 1262-63 (11th

Cir.), cert. denied, 126 S. Ct. 442 (2005).

      Finally, in so far as McClain attacks his conviction or sentence based upon

the rule of law announced in Booker, the proper vehicle is a petition with this court

for permission to file a successive motion to vacate under 28 U.S.C. § 2255. See,

e.g., Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003). However, we have

already denied McClain’s second or successive application on this basis.

Therefore, any Booker argument raised in connection with the present appeal fails.

      For the above-stated reasons, we affirm the district court’s denial of

McClain’s motion to modify his sentence and the denial of McClain’s motion for

reconsideration.

      AFFIRMED.




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