                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                              FILED
                                                     U.S. COURT OF APPEALS
                          FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
                            ________________________    JANUARY 16, 2009
                                                        THOMAS K. KAHN
                                  No. 08-13685               CLERK
                             Non-Argument Calendar
                           ________________________

                     D. C. Docket No. 95-00728-CR-DTKH

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                     versus

REGGIE WHITE,
a.k.a. Reggie A. White,

                                                            Defendant-Appellant.


                           ________________________

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

                                (January 16, 2009)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
      Reginald White, a federal prisoner convicted of a crack cocaine offense,

appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for

reduction of sentence based on Amendments 706 and 713 to the Sentencing

Guidelines, which lowered the base offense levels applicable to crack cocaine

offenses under U.S.S.G. § 2D1.1. The district court sentenced White to a statutory

minimum sentence of life imprisonment, but later reduced White’s sentence based

on the government’s Federal Rule of Criminal Procedure Rule 35(b) substantial

assistance motions. Thereafter, White filed a motion to reduce his sentence under

§ 3582(c)(2). The district court held White was not eligible for relief under

§ 3582(c)(2) because he was sentenced under a statutory minimum sentence.

      On appeal, White argues the district court possessed the authority to reduce

his sentence despite the mandatory statutory minimum sentence because, pursuant

to Rule 35(b), the court had the authority to reduce White’s sentence below the

applicable statutory minimum. White additionally argues his original sentence was

imposed in violation of his constitutional rights because a jury did not find he was

responsible for a specific amount of illegal drugs.

      We review for abuse of discretion a district court’s decision whether to

reduce a sentence, pursuant to § 3582(c)(2), based on a subsequent change in the

Sentencing Guidelines. United States v. Brown, 332 F.3d 1341, 1343 (11th Cir.



                                          2
2003). In the § 3582(c)(2) context, “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 also review de

novo questions of statutory interpretation. United States v. Maupin, 520 F.3d 1304,

1306 (11th Cir. 2008).

      Although a district court generally cannot modify a term of imprisonment

once it has been imposed, an exception lies in § 3582(c)(2), where:

       [I]n 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 [18 U.S.C.
       § 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). A reduction of a term of imprisonment

is not consistent with applicable policy statements – and, therefore, not authorized

under § 3582(c)(2) – if the retroactive amendment “does not have the effect of

lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B);

see also id. at cmt. n.1(A) (noting a defendant is not eligible for a sentence

reduction where a guideline amendment “does not have the effect of lowering the

defendant’s applicable guideline range because of the operation of another



                                           3
guideline or statutory provision (e.g., a statutory mandatory minimum term of

imprisonment)”).

      Amendment 706 retroactively reduced the offense levels in crack cocaine

cases, calculated pursuant to § 2D1.1(c), by two levels. U.S.S.G. App. C, Amend.

706. Although the retroactive effect of Amendment 706 allows a defendant, whose

guideline imprisonment range was determined in accordance with the offense level

calculations under § 2D1.1, to seek a reduction in his sentence, 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); United States v. Moore, 541

F.3d 1323, 1327-28 (11th Cir. 2008).

      Additionally, a § 3582(c)(2) motion is not the proper avenue through which

to raise issues arising from the Supreme Court’s decision in Apprendi v. New

Jersey, 120 S. Ct. 2348 (2000), as such a claim does not involve an amendment

made retroactive. See 18 U.S.C. § 3582(c)(2). Under the plain language of

§ 3582(c)(2), only changes to the Guidelines made by the Sentencing Commission

after the defendant’s sentencing hearing, not Supreme Court decisions, can be used

as a basis for a § 3582(c)(2) motion. See id.; see also United States v. Moreno, 421



                                          4
F.3d 1217, 1220 (11th Cir. 2005) (“Booker is a Supreme Court decision, not a

retroactively applicable guideline amendment by the Sentencing Commission.

Therefore, Booker is inapplicable to § 3582(c)(2) motions.”).

      Here, the court sentenced White to the mandatory minimum term of life

imprisonment, which applied based on his previous felony drug convictions.

Because the district court relied on a statutory mandatory sentence, rather than a

base offense level under U.S.S.G. § 2D1.1, the district court did not err in

concluding it lacked authority to reduce White’s sentence under § 3582(c)(2). The

fact that the district court granted the government’s Rule 35(b) motions to reduce

White’s sentence does not change this result. We do not review White’s

constitutional claim on the merits because a motion filed under 18 U.S.C.

§ 3582(c)(2) is not the proper vehicle to raise a constitutional claim. Accordingly,

based upon a review of the record and the parties’ briefs, we affirm the district

court’s denial of White’s § 3582(c)(2) motion.

      AFFIRMED.




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