                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                              No. 08-12264                ELEVENTH CIRCUIT
                                                            November 24, 2008
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                CLERK

                   D. C. Docket No. 98-00433-CR-T-24-C

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

ELLIOTT WALKER,
a.k.a. Earl,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________
                            (November 24, 2008)


Before BIRCH, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Elliott Walker appeals the district court’s denial of his motion for a reduced

sentence, brought pursuant to 18 U.S.C. § 3582(c)(2). Walker’s motion was based

on Amendment 706 to the Sentencing Guidelines, which retroactively lowered

certain base offense levels applicable to crack cocaine The district court concluded

that it was not authorized to grant a sentencing reduction because it found that

Walker was held accountable for 4.5 kilograms or more of crack cocaine at

sentencing and, therefore, Amendment 706 would not retroactively lower his

guideline range. For the reasons set forth below, we affirm.

                                           I.

      In 1998, a federal grand jury returned an indictment against Walker and

several codefendants, charging them with conspiracy to possess with intent to

distribute 50 or more grams of crack cocaine and 5 or more kilograms of cocaine,

in violation of 21 U.S.C. §§ 846 and 841(a)(1). After a jury trial, Walker was

convicted on the lone count in the indictment.

      In setting out Walker’s offense conduct in the pre-sentence investigation

report (“PSI”), the probation officer stated: “It is conservatively estimated that

Elliott Walker is held accountable for 21 kilograms of cocaine base.” In

calculating Walker’s applicable guideline range, the probation officer assigned

Walker a base offense level of 38 under U.S.S.G. § 2D1.1 because he was



                                           2
responsible for “an amount of 1.5 kilograms or more” of crack cocaine. Because

Walker did not receive any enhancements or reductions, his total offense level was

38, which, coupled with a criminal history category of I, gave him an applicable

guideline range of 235 to 293 months’ imprisonment. Because he was subject to a

statutory mandatory minimum sentence of 20 years’ imprisonment, however, his

applicable guideline range became 240 to 293 months’ imprisonment.

      In his objections to the PSI, Walker argued that the evidence at trial did not

support the probation officer’s drug-quantity estimate. The probation officer

responded that he believed the calculations in the PSI were accurate, stating:

      Pursuant to the provisions of USSG § 2D1.1, a base offense level of
      38 is assigned to an amount of cocaine base of 1.5 kilograms or more.
      This was a long-term, ongoing conspiracy, and regardless of the
      defendant’s actual involvement, it was reasonably foreseeable to him
      that collectively all of the defendants have distributed more than 1.5
      kilograms of cocaine base. . . .

Walker also argued, inter alia, that he was eligible for a two-level safety-valve

reduction under U.S.S.G. § 5C1.2.

      At the sentencing hearing, defense counsel withdrew his objection with

respect to drug quantity. Significantly, the district court adopted the factual

findings and guideline calculations in the PSI, except that it found Walker eligible

for the safety-valve reduction, which reduced his total offense level from 38 to 36

and enabled the court to impose a sentence below the statutory mandatory

                                           3
minimum. Accordingly, Walker’s applicable guideline range became 188 to 235

months’ imprisonment, and the district court sentenced him to the low-end of that

range.

         On March 4, 2008, Walker filed a pro se motion for a reduced sentence

under 18 U.S.C. § 3582(c)(2), arguing that the district court should reduce his

sentence because Amendment 706 retroactively lowered his guideline range. In

response, the government and the probation officer asserted that Walker was not

eligible for a sentencing reduction under § 3582(c)(2) because he was responsible

for 21 kilograms of crack cocaine and, therefore, Amendment 706 would not lower

his applicable guideline range. Adopting this position, the district court denied

Walker’s § 3582(c)(2) motion.

                                           II.

         “In a proceeding to modify a sentence under 18 U.S.C. § 3582(c)(2), we

review de novo the district court’s legal conclusions regarding the scope of its

authority under the Sentencing Guidelines.” United States v. White, 305 F.3d

1264, 1267 (11th Cir. 2002). “We review de novo questions of statutory

interpretation.” United States v. Maupin, 520 F.3d 1304, 1306 (11th Cir. 2008).

         Section 3582(c) provides in relevant part:

      The court may not modify a term of imprisonment once it has been imposed
except that –

                                            4
      ...
      (2) 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),
      upon motion of the defendant or the Director of the Bureau of Prisons,
      or on its own motion, the court may reduce the term of imprisonment,
      after considering the factors set forth in section 3553(a) to the extent
      that they are applicable, if such a reduction is consistent with
      applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2) (emphasis added). The Sentencing Commission’s recently

revised policy statement on retroactive amendments to the Guidelines similarly

provides:

      In a case in which a defendant is serving a term of imprisonment, and
      the guideline range applicable to that defendant has subsequently been
      lowered as a result of an amendment to the Guidelines Manual listed
      in subsection (c) below, the court may reduce the defendant’s term of
      imprisonment as provided by 18 U.S.C. 3582(c)(2). As required by 18
      U.S.C. 3582(c)(2), any such reduction in the defendant’s term of
      imprisonment shall be consistent with this policy statement.

U.S.S.G. § 1B1.10(a)(1) (made effective on March 3, 2008, by Amendment 712).

This policy statement emphasizes that “[a] reduction in the defendant’s term of

imprisonment is not consistent with this policy statement and therefore is not

authorized under 18 U.S.C. 3582(c)(2) if . . . [a]n amendment listed in subsection

(c) does not have the effect of lowering the defendant’s applicable guideline

range.” U.S.S.G. § 1B1.10(a)(2)(B).

      On November 1, 2007, the Sentencing Commission promulgated



                                          5
Amendment 706, which amended the Drug Quantity Table in U.S.S.G. § 2D1.1(c).

U.S.S.G. App. C, Amend. 706 (2007). The Commission made this amendment

retroactively applicable, effective as of March 3, 2008. See U.S.S.G., App. C,

Amend. 713 (Supp. May 1, 2008) (listing Amendment 706 under U.S.S.G.

§ 1B1.10(c) as a retroactively applicable amendment).

      Before Amendment 706 took effect, a defendant received a base offense

level of 38 under § 2D1.1(c)(1) if he was held accountable for 1.5 kilograms or

more of crack cocaine; under the amended version of § 2D1.1(c)(1), however, a

defendant receives a base offense level of 38 if he is held accountable for 4.5

kilograms or more of crack cocaine. See U.S.S.G. App. C, Amend. 706 (2007).

Thus, under the amended version of § 2D1.1(c), a defendant held accountable for

at least 1.5 kilograms but less than 4.5 kilograms of crack cocaine receives a base

offense level of 36. See id.

                                         III.

      In this case, the parties principally dispute whether Walker was sentenced

“based on a range that has been subsequently lowered” by Amendment 706. 18

U.S.C. § 3582(c)(2). Walker contends that, because the sentencing court only held

him accountable for 1.5 kilograms or more of crack cocaine, his base offense level

would be reduced under the amended version of § 2D1.1.(c) from 38 to 36, thus



                                          6
lowering the guideline range upon which his sentence was based. The government

responds that Walker’s base offense level would remain 38 under the current

version of § 2D1.1(c)(1) because, by withdrawing his objection to drug quantity at

sentencing, Walker admitted to the probation officer’s finding that he was

accountable for 21 kilograms of crack cocaine.

       Contrary to Walker’s argument, the sentencing court found Walker

accountable for 21 kilograms of crack cocaine. This is so because, not only did the

court adopt the probation officer’s calculation of Walker’s base offense level, it

also adopted the factual findings in the PSI, including the probation officer’s

estimate that Walker was accountable for 21 kilograms of crack cocaine.

       On appeal, the only substantive challenge that Walker mounts to this factual

finding is that the government failed to meet its burden of proof that Walker was

responsible for 21 kilograms of crack cocaine.                 However, the district court,

operating in a § 3582(c)(2) proceeding, is bound by the factual determinations

made at sentencing. United States v. Cothran, 106 F.3d 1560, 1562-63 & n.5 (11th

Cir. 1997) (holding that the district court, in a § 3582(c)(2) proceeding, was bound

by the sentencing court’s factual determination regarding the number of marijuana

plants attributed to the defendant).1


       1
         Furthermore, even if Walker was permitted to challenge this factual finding, we agree with
the government that he waived his ability to do so by affirmatively withdrawing his drug-quantity

                                                7
       In sum, because Walker was held responsible for 4.5 kilograms or more of

crack cocaine, his base offense level would remain 38 even under the amended

version of § 2D1.1(c)(1).        Thus, Walker’s sentence was not based on a range

subsequently lowered by Amendment 706 and, for this reason, the district court

lacked authority to grant him a sentencing reduction under § 3582(c)(2).                   See

United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008) (holding that the

district court lacked authority under § 3582(c)(2) to grant a sentencing reduction to

defendants who were career offenders sentenced under U.S.S.G. § 4B1.1 because,

while Amendment 706 would retroactively lower their base offense levels, it would

not ultimately affect their guideline ranges); accord United States v. Thomas, __

F.3d __, No. 08-11492 (11th Cir. Oct. 23, 2008) (holding the same as applied to a

defendant who was an armed career criminal sentenced under U.S.S.G. § 4B1.4).

Accordingly, we affirm the district court’s denial of Walker’s § 3582(c)(2)

motion.2

       AFFIRMED.




objection at sentencing. United States v. Masters, 118 F.3d 1524, 1526 (11th Cir. 1997).
       2
           We also conclude that Walker’s remaining arguments, including his reliance on United
States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), are without merit and we
do not discuss them further.

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