                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            JUNE 18 2007
                             No. 06-14658                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 95-03039-CR-3-RV

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

WENDELL L. CRAWFORD,
a.k.a. NUT,
                                                         Defendant-Appellant.


                       ________________________

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

                              (June 18, 2007)

Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:
      Wendell Crawford, a federal prisoner proceeding pro se, appeals the district

court’s order denying his motion to modify sentence based upon a retroactive

change to the advisory United States Sentencing Guidelines (“the Guidelines”), 18

U.S.C. § 3582(c)(2), both as an unauthorized second or successive 28 U.S.C. §

2255 motion, and, additionally, because it was outside the “scope” of § 3582(c)(2).

Because the changes made by Amendment 591 to the Guidelines had no impact on

Crawford’s sentence in this case, the district court correctly denied Crawford’s

request for sentencing relief as outside the “scope” of § 3582(c)(2), and we

AFFIRM in part as to that portion of the district court’s order. Because the district

court never considered whether to issue a Certificate of Appealability (“COA”) as

to the portion of its order denying Crawford’s § 3582(c)(2) as an unauthorized

second or successive § 2255 motion, however, we REMAND in part for

consideration of which, if any, issues meet the COA standard.

                                I. BACKGROUND

      In June 1995, Crawford was indicted along with six other individuals and

charged with conspiracy to possess with intent to distribute cocaine base, in

violation of 21 U.S.C. § 846, and possession with intent to distribute cocaine base,

in violation of 21 U.S.C. § 841(a), (b)(1)(A)(iii), and 18 U.S.C. § 2. A jury found

him guilty as charged.



                                          2
      In calculating Crawford’s sentencing range, the presentence investigation

report (“PSI”) grouped Crawford’s two counts of conviction together pursuant to

U.S.S.G. § 3D1.2(d) (1994) and noted that the base offense level for a § 846

offense was found in U.S.S.G. § 2D1.1. The PSI initially assigned a base offense

level of 38, which the district court later reduced to 36 under § 2D1.1(c)(4) based

on the court’s finding that the offense involved between 500 grams and 1.5

kilograms of cocaine base. After applying 2-level enhancements for a

co-conspirator’s possession of a firearm, pursuant to § 2D1.1(b)(1), and

obstruction of justice, pursuant to U.S.S.G. § 3C1.2, the court found that Crawford

had a total offense level of 40 and a criminal history category of I, resulting in a

guideline sentencing range of 292 to 365 months of imprisonment. The court

sentenced Crawford to 292 months of imprisonment, and we affirmed on direct

appeal. United States v. Stallworth, No. 95-3533, 121 F.3d 721 (11th Cir. July 22,

1997) (unpublished).

      In 1998, Crawford filed a 28 U.S.C. § 2255 motion to vacate, set aside, or

correct sentence, which the district court denied. Both the district court and our

court denied a COA. After the conclusion of his § 2255 proceedings, Crawford

also filed (1) an application for leave to file a second or successive § 2255 motion,




                                           3
which we denied; and (2) a motion for a new sentencing hearing, which the district

court denied.

      Crawford then filed a pro se motion to modify his sentence based upon a

retroactive amendment to the Guidelines, pursuant to 18 U.S.C. § 3582(c)(2).

Crawford stated that retroactive application of Amendment 591 to the Guidelines

would result in the reduction of his sentence because, under that amendment, a

district court must base its selection of the applicable offense guideline only on the

charged offense, not simply a finding that the defendant had engaged in conduct

covered by that guideline. Crawford then asserted that the district court violated

his Confrontation Clause rights by enhancing his sentence based on unreliable

hearsay evidence regarding drug quantity and a co-conspirator’s possession of a

firearm. Crawford argued that, “[b]ecause the scope of conduct for which a

defendant can be held accountable under the sentencing guidelines is significantly

narrower than the conduct embraced by the law of Conspiracy,” district courts may

not “without further findings simply sentence a defendant according to the amount

of narcotics involved in the conspiracy.” R352 at 7. Crawford then asserted that

(1) the government failed to prove disputed sentencing facts by a preponderance of

the evidence; (2) the district court sentenced him based on the total drug quantity

involved in the conspiracy without properly considering his lesser role in the



                                           4
conspiracy; (3) he should have received a four-level minor-role reduction under

U.S.S.G. § 3B1.2; and (4) he should not have received a two-level firearm

enhancement under U.S.S.G. § 2D1.1(b) because his co-conspirator’s possession

of a weapon was not “reasonably foreseeable.” Id. at 8-11. Crawford thus

concluded that his total offense level should be 30, and that the district court had

the discretion under § 3582(c)(2) to vacate his sentence and resentence him within

a guideline range of 97 to 121 months of imprisonment.

      Without requiring the government to respond, the district court denied

Crawford’s § 3582(c)(2) motion “for lack of jurisdiction because the motion is an

attempt to file a second Section 2255 petition, without Circuit authorization.” R-

353. The court further stated that Crawford’s motion was “[a]lso DENIED on the

merits because it is not within the scope of Section 3582(c)(2).” Id.

      Crawford filed a timely notice of appeal, which the district court did not

construe as a motion for a COA. Crawford then moved in our court for leave to

proceed on appeal in forma pauperis (“IFP”). We granted Crawford’s motion for

leave to proceed on appeal IFP.

                                  II. DISCUSSION

A.    The Requirement of a COA in this Appeal




                                           5
      As an initial matter, it appears that at least a portion of Crawford’s appeal is

not properly before us. As noted above, the district court denied Crawford’s §

3582(c)(2) motion on two grounds: (1) for lack of jurisdiction because it was an

unauthorized second or successive § 2255 motion, and (2) on the merits because it

was not within the “scope” of § 3582(c)(2). R-353. To the extent that the district

court denied Crawford’s motion on the ground that it was not within the “scope” of

§ 3582(c)(2), that portion of the judgment would be appealable as a final order of

the district court. See 28 U.S.C. § 1291.

      To the extent the district court denied relief on the ground that the §

3582(c)(2) motion was, in substance, a second or successive § 2255 motion,

however, Crawford must receive a COA to appeal that portion of the order. See 28

U.S.C. § 2253(c)(1) (providing that “unless a circuit justice or judge issues a

certificate of appealability, an appeal may not be taken to the court of appeals

from—(A) the final order in a habeas corpus proceeding in which the detention

complained of arises out of process issued by a State court; or (B) the final order in

a proceeding under section 2255”). Because Crawford’s § 3582(c)(2) motion, at

least in part, challenged the constitutionality of his sentence under the

Confrontation Clause, the district court correctly construed the filing as a

successive § 2255 motion. See Means v. Alabama, 209 F.3d 1241, 1242 (11th



                                            6
Cir. 2000) (per curiam) (citation omitted) (noting that federal courts must look

beyond the labels of motions filed by pro se inmates to interpret them under

whatever statute would provide relief); 28 U.S.C. § 2255 (providing the exclusive

statutory vehicle for a federal prisoner to claim “the right to be released upon the

ground that the sentence was imposed in violation of the Constitution or laws of

the United States, or that the court was without jurisdiction to impose such

sentence”). As such, Crawford would need a COA to proceed as to that portion of

his appeal.

      As noted above, Crawford properly filed a notice of appeal from the denial

of his § 3582(c)(2) motion, but the district court did not construe the notice of

appeal as a motion for COA, and, thus, never considered whether to issue a COA.

We will not make the initial determination of whether to issue a COA; the district

court must rule first. Edwards v. United States, 114 F.3d 1083, 1084 (11th Cir.

1997) (per curiam). Accordingly, we order a limited remand in part for the district

court to consider which issues, if any, meet the standard for issuance of a COA,

pursuant to Edwards.

      Because the portion of the district court’s order denying Crawford’s §

3582(c)(2) motion as outside the “scope” of § 3582 is properly before us as an

appeal under § 1291, and because the parties already have submitted their appellate



                                           7
briefs, in the interest of judicial economy we will address Crawford’s appeal from

that portion of the judgment without waiting for the district court’s ruling on a

COA on the other portion of the district court’s judgment.

B.    The Merits of Crawford’s § 3582(c)(2) Appeal

      On appeal, Crawford reasserts essentially verbatim the arguments he initially

raised in his § 3582(c)(2) motion. Again, Crawford contends that Amendment 591

would result in the reduction of his sentence because the selection of the offense

guideline must be based only on the offense of conviction, not a finding that the

defendant’s conduct fell within a particular guideline. Crawford argues that the

district court violated his Confrontation Clause rights by enhancing his sentence

based on unreliable hearsay testimony regarding the total drug quantity involved in

the conspiracy and a co-conspirator’s possession of a firearm. Crawford contends

that relevant conduct under the Guidelines is a narrower concept than the “law of

Conspiracy,” and that the district court must make additional findings before

holding a defendant accountable for the total amount of drugs in a conspiracy.

Appellant’s Br. at 11. As before, Crawford argues that (1) the government failed

to prove disputed sentencing facts by a preponderance of the evidence; (2) the

district court sentenced him based on the total drug quantity involved in the

conspiracy without properly weighing his lesser role in the offense; (3) he deserved



                                           8
a four-level minor-role reduction under U.S.S.G. § 3B1.2; and (4) his § 2D1.1(b)

firearm enhancement was improper because his co-conspirator’s possession of a

weapon was not “reasonably foreseeable.” Id. at 11-17. Crawford again concludes

that his total offense level should be 30, and that the district court had the

discretion under § 3582(c)(2) to vacate his sentence and resentence him within a

guideline range of 97 to 121 months of imprisonment.

         In his reply brief, Crawford also argues (for the first time) that we should

consider whether United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005),

applies to § 3582(c)(2) motions. Crawford acknowledges our contrary holding in

United States v. Moreno, 421 F.3d 1217 (11th Cir. 2005) (per curiam), cert.

denied, 126 S. Ct. 1643 (2006), but asserts that “[s]ome circuits ha[ve] held that

[Booker] does [apply to § 3582(c)(2) motions].” Appellant’s Reply Br. at 1.

Crawford then briefly reiterates his claim that Amendment 591 prohibited the

district court from considering his relevant conduct in setting his base offense

level.

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

reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2). See United States v.

Vautier, 144 F.3d 756, 759 n.3 (11th Cir. 1998) (citation omitted).




                                            9
      Under 18 U.S.C. § 3582(c)(2), a district court has discretion to reduce the

term of imprisonment of an already incarcerated defendant when that defendant’s

sentence was based upon a sentencing range that has been subsequently lowered by

the Commission pursuant to 28 U.S.C. § 994(o). United States v. Bravo, 203 F.3d

778, 780 (11th Cir. 2000). Before granting a sentence modification, however, a

district court must consider the factors set forth in § 3553(a) to the extent that they

are applicable, and evaluate whether such a reduction is “consistent with the

applicable policy statements issued by the Sentencing Commission.” 18 U.S.C.

§ 3582(c)(2). Section 3553(a) provides that the court must evaluate, inter alia, the

nature and circumstances of the offense, the history and characteristics of the

defendant, and the need for the sentence imposed. 18 U.S.C. § 3553(a). Thus, the

law permits, but does not require, a district court to resentence a defendant under §

3582(c)(2). United States v. Brown, 104 F.3d 1254, 1255 (11th Cir. 1997) (per

curiam) (citation omitted). Moreover, only amendments listed in § 1B1.10(c) may

be applied retroactively using a § 3582(c)(2) motion. U.S.S.G. § 1B1.10(a);

United States v. Pelaez, 196 F.3d 1203, 1205 n.3 (11th Cir. 1999). Amendment

591 is one of the amendments listed in § 1B1.10(c). U.S.S.G. § 1B1.10(c);

Moreno, 421 F.3d at 1219.




                                           10
      We do not require a district court to make specific findings explaining its

decision not to resentence a defendant, so long as the court clearly considered the

factors listed in § 3553(a) and set forth adequate reasons for its refusal to modify

the original sentence. Brown, 104 F.3d at 1255. Moreover, a sentencing

adjustment undertaken pursuant to § 3582(c)(2) does not constitute a de novo

resentencing. Bravo, 203 F.3d at 781 (citation omitted). All original sentencing

determinations remain unchanged with the exception of the guideline range that

has been amended since the original sentencing. Id. (citation omitted).

      Amendment 591 to the Sentencing Guidelines amended the language of

several sentencing guidelines to address “a circuit conflict regarding whether the

enhanced penalties in U.S.S.G. § 2D1.2 . . . appl[ied] only in a case in which the

defendant was convicted of an offense referenced to that guideline or, alternatively,

in any case in which the defendant’s relevant conduct included drug sales in a

protected location or involving a protected individual.” U.S.S.G. App. C, amend.

591 at “Reason for Amendment” (Nov. 2000). By its explicit terms, Amendment

591 simply clarified that, “in order for the enhanced penalties in §2D1.2 to apply,

the defendant must [have been] convicted of an offense referenced to §2D1.2,

rather than simply have engaged in conduct described by that guideline.” Id.

Section 2D1.2(a)(1) provides heightened base offense levels for drug offenses



                                          11
involving a “protected location or an underage or pregnant individual.” Only

defendants convicted of offenses under 21 U.S.C. §§ 859, 860, and 861 are subject

to the enhanced penalties of § 2D1.2. U.S.S.G. § 2D1.2, comment. (Statutory

Provisions).

      In Moreno, the defendant sought a sentence reduction under § 3582(c)(2),

arguing that Amendment 591 prohibited the district court from selecting a base

offense level of 38 within § 2D1.1 because that level was not based solely on the

jury verdict in his case, which did not reference a drug quantity. 421 F.3d at 1219.

We noted that “Amendment 591 directs the district court to apply the guideline

dictated by the statute of conviction, but does not constrain the use of judicially

found facts to select a base offense level within the relevant guideline.” Id. at

1219-20 (citation omitted). We observed that Moreno’s argument confused two

distinct steps: (1) the selection of the applicable offense guideline, and (2) the

selection of the base offense level within the relevant offense guideline. Id. at

1220. We then agreed with two other circuits in holding that Amendment 591 only

applies to the selection of the relevant offense guideline, not the selection of the

specific base offense level within the applicable offense guideline. Id. (citations

omitted). Thus, we concluded that the district court did not abuse its discretion in

denying Moreno’s § 3582(c)(2) motion. Id.



                                           12
      Here, the district court correctly found that Crawford’s request for a

sentence reduction pursuant to Amendment 591 fell outside the “scope” of §

3582(c)(2). See R-353. By its express terms, Amendment 591 only clarified that

the enhanced base offense levels in § 2D1.2 apply only to defendants convicted

under 21 U.S.C. §§ 859, 860, and 861. See U.S.S.G. § 2D1.2, comment. (Statutory

Provisions). Crawford was convicted under 21 U.S.C. §§ 846, 841(a), and 18

U.S.C. § 2, which are not enumerated offenses subject to the enhanced base offense

levels of § 2D1.2. See id. As such, the changes made by Amendment 591 had no

impact on Crawford’s sentence in this case.

      Similarly, to the extent that Crawford contended that Amendment 591

prohibited the district court from setting his base offense level within § 2D1.1

based on facts not found by the jury, that argument is directly foreclosed by our

decision in Moreno. See Moreno, 421 F.3d at 1220. Moreover, Crawford’s

various other sentencing arguments—that (1) the government failed to prove

disputed sentencing facts by a preponderance of the evidence; (2) the district court

did not properly weigh his role in the conspiracy before sentencing him based on

the total drug quantity involved in the conspiracy; (3) he should have received a

mitigating-role reduction; and (4) the firearm enhancement was improper because

the co-conspirator’s possession of a weapon was not “reasonably



                                          13
foreseeable”—are not based on any retroactive guideline amendment, and, thus, are

not properly raised in a § 3582(c)(2) motion. See 18 U.S.C. § 3582(c)(2); 28

U.S.C. § 994(o); Bravo, 203 F.3d at 780-81.

      Finally, Crawford’s argument that Booker applies to § 3582(c)(2) motions,

raised for the first time in his reply brief, is not properly presented to us. See

United States v. Britt, 437 F.3d 1103, 1104-05 (11th Cir. 2006) (per curiam)

(holding that a Booker claim cannot be raised for the first time in a reply brief).

Even if Crawford’s Booker argument was properly raised on appeal, however, it

would be without merit. In Moreno, we additionally held that Booker is

inapplicable to § 3582(c)(2) motions because it is a Supreme Court decision, not a

retroactively applicable guideline amendment promulgated by the Sentencing

Commission. Moreno, 421 F.3d at 1220. Accordingly, Booker does not provide a

jurisdictional basis to modify and reduce Crawford’s sentence under § 3582(c)(2).

                                 III. CONCLUSION

      Based on the foregoing, we AFFIRM in part, and order a limited REMAND

in part for the district court to consider which issues, if any, meet the standard for

issuance of a COA.

      AFFIRMED IN PART, LIMITED REMAND IN PART.




                                           14
