                                                            [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                    FILED
                                                           U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                               No. 05-16431
                                                               September 11, 2008
                           Non-Argument Calendar              THOMAS K. KAHN
                         ________________________                 CLERK

                      D. C. Docket No. 95-00430-CR-SH

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

ROBERT BUTLER,

                                                            Defendant-Appellant.

                         ________________________

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

                             (September 11, 2008)

Before BLACK, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

     Robert Butler, a federal prisoner proceeding pro se, appeals from the district

court’s denial of his 18 U.S.C. § 3582(c) motion to modify his 360-month

sentence, based on guideline Amendment 506, which addressed the definition of
“Offense Statutory Maximum” in U.S.S.G. § 4B1.1 cmt. n.2. On appeal, Butler

argues that the district court erred by denying his § 3582(c) motion without

recalculating his guideline range under the amendment, and that the record did not

support the denial. After careful review, we affirm.

      We review a district court’s order denying a sentence reduction, pursuant to

§ 3582(c)(2), for abuse of discretion. United States v. Moreno, 421 F.3d 1217,

1219 (11th Cir. 2005).

      Under the Guidelines, the offense level of a career offender is generally

determined by reference to his offense statutory maximum. See U.S.S.G. § 4B1.1.

Amendment 506, effective November 1, 1994, changed the definition of “offense

statutory maximum” so that it included only the basic statutory maximum, rather

than a maximum that had been increased by virtue of the defendant’s prior

convictions:

      ‘Offense Statutory Maximum,’ for the purposes of [§ 4B1.1] refers to
      the maximum term of imprisonment authorized for the offense of
      conviction that is a crime of violence or controlled substance offense,
      not including any increase in that maximum term under a sentencing
      enhancement provision that applies because of the defendant’s prior
      criminal record (such sentencing enhancement provisions are
      contained, for example, in 21 U.S.C. § 841(b)(1)(A), (b)(1)(B),
      (b)(1)(C), and (b)(1)(D)). For example, where the statutory maximum
      term of imprisonment under 21 U.S.C. § 841(b)(1)(C) is increased
      from twenty years to thirty years because the defendant has one or
      more qualifying prior drug convictions, the ‘Offense Statutory



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      Maximum’ for the purposes of this guideline is twenty years and not
      thirty years.

U.S.S.G. App. C, Amend. 506 (emphasis added).         Applying this amendment,

Butler contends that when he was sentenced in July 1997, the sentencing

enhancements should not have been included in determining his offense level for

purposes of U.S.S.G. § 4B1.1. Thus, he says, his offense level should have been

32, rather than 37.

      Yet in May 1997, the Supreme Court held that Amendment 506 violated the

plain language of 28 U.S.C. § 944(h) because that section required that “offense

statutory maximum” must include sentencing enhancement provisions.        United

States v. LaBonte, 520 U.S. 751, 757-62 (1997).     In response to LaBonte, the

Commission issued Amendment 567, which amended § 4B1.1 cmt. n.2 to specify

that “offense statutory maximum” includes sentencing enhancement provisions.

See U.S.S.G. App. C, Amend. 567.

      We find no merit to Butler’s argument that the district court abused its

discretion in denying his § 3582(c) motion. Under Section 3582(c)(2), a district

court may modify a defendant’s previously imposed sentence, after considering the

18 U.S.C. § 3553(a) factors, when the term of imprisonment was based on a

guideline range that was subsequently lowered by the Sentencing Commission, as

long as the reduction is consistent with the Commission policy statements. 18

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U.S.C. § 3582(c)(2). Here, however, Amendment 506 -- which Butler now claims

was retroactively applicable to him -- was in place in July 1997, when he was

sentenced.   As a result, that amendment could not have been retroactively

applicable to him, and he therefore is not entitled to relief under Section 3582(c).

Moreover, at the time he was sentenced, the Supreme Court had already

invalidated Amendment 506, and the district court correctly calculated Butler’s

sentence based on the guidelines that were valid and applicable to him at that time.

Accordingly, the district court did not abuse its discretion in denying Butler’s

§ 3582(c) motion, and we affirm.

      AFFIRMED.




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