           Case: 12-10062    Date Filed: 09/25/2012        Page: 1 of 4


                                                                 [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 12-10062
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 5:10-cr-00026-CAR-CHW-2



UNITED STATES OF AMERICA,

                                llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,

                                    versus

MYRON MCCRARY,

                             llllllllllllllllllllllllllllllllllllllllDefendant - Appellant.

                      ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                      ________________________

                            (September 25, 2012)

Before CARNES, WILSON and MARTIN, Circuit Judges.

PER CURIAM:
              Case: 12-10062    Date Filed: 09/25/2012   Page: 2 of 4

      Myron McCrary, a federal prisoner, appeals the district court’s denial of his

18 U.S.C. § 3582(c)(2) motion for reduction of sentence.

                                         I.

      In September 2010, Myron McCracy pleaded guilty to distributing more

than fifty grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(A)(iii). He was sentenced in January 2011 to a 120-month prison sentence,

in accordance with the pre-sentence report (PSR). The PSR recommended a range

of 120 to 121 months, based on a 120-month, or ten-year, mandatory minimum

under § 841(b)(1)(A)(iii). McCrary filed a § 3582(c)(2) motion in November

2011, arguing that he was entitled to resentencing under Amendment 750 to the

Sentencing Guidelines as it applied to U.S.S.G. § 2D1.1. The district court denied

the motion, and McCrary appealed.

                                        II.

      “We review de novo a district court’s conclusion that a defendant is not

eligible for a sentence reduction under § 3582(c)(2).” United States v. Glover,

686 F.3d 1203, 1206 (11th Cir. 2012).

      To begin, the arguments McCrary raise in his brief do not relate to his

§ 3582(c)(2) motion. Instead, McCrary pursues claims on appeal relating to




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ineffective assistance of counsel, which we will not address here.1 See United

States v. Bravo, 203 F.3d 778, 782 (11th Cir. 2000) (declining to consider

“extraneous resentencing issues” unrelated to § 3582(c)(2)). With regard to his

§ 3582(c)(2) motion, we affirm the district court. Section 3582(c)(2) allows a

district court to resentence a federal prisoner “based on a sentencing range that has

subsequently been lowered by the Sentencing Commission.” 18 U.S.C. §

3582(c)(2). However, the Sentencing Commission has not lowered the sentencing

range as it applies to McCrary’s conviction insofar as he was sentenced in January

2011, and his sentencing range has not “subsequently been lowered” since that

date.

        The Sentencing Commission implemented an emergency

amendment—Amendment 748—to the Guidelines on November 1, 2010 to reduce

sentences for cocaine base offenses, pursuant to the Fair Sentencing Act of 2010,

Pub. L. No. 111-220, 124 Stat. 2372 (2010). See U.S.S.G. App. C, amend. 748.

At the time of McCrary’s sentencing in January 2011, his PSR recommended a

Guidelines range in accordance with the Sentencing Guidelines Manual effective

November 1, 2010. Effective November 1, 2011, the Sentencing Commission


        1
           In January 2012, McCrary filed a motion to vacate his sentence pursuant to 28 U.S.C.
§ 2255, claiming ineffective assistance of counsel. This motion remains pending before the
district court.

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promulgated Amendment 750, which made permanent the emergency revisions of

Amendment 748. See id., amend. 750. Amendment 750 did not further lower the

sentencing ranges under U.S.S.G. § 2D1.1(c). See id. In other words, McCrary

had already benefitted from the reduced sentencing range under § 2D1.1 for

offenses involving cocaine base.

       We also observe that McCrary’s sentence was based on a statutory

mandatory minimum of 120 months. We have repeatedly held that § 3582(c)(2)

relief is not available to defendants who were sentenced on the basis of a statutory

mandatory minimum. See Glover, 686 F.3d at 1206–07; United States v. Mills,

613 F.3d 1070, 1079 (11th Cir. 2010).

      Because the relevant sentencing range has not been lowered by the

Sentencing Commission since McCrary’s sentencing, the district court lacked

authority to resentence him under § 3582(c)(2). See Glover, 686 F.3d at 1208.

                                        III.

      For these reasons, we AFFIRM the district court.




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