                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                            FILED
                                                   U.S. COURT OF APPEALS
                        FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
                          ________________________    JANUARY 14, 2009
                                                      THOMAS K. KAHN
                                No. 08-13984               CLERK
                             Non-Argument Calendar
                           ________________________

                    D. C. Docket No. 98-00061-CR-T-27TBM

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                       versus

ERVIN BRODIE,

                                                              Defendant-Appellant.

                           ________________________

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

                                (January 14, 2009)

Before CARNES, HULL and FAY, Circuit Judges.

PER CURIAM:

      Ervin Brodie, a federal prisoner convicted of crack-cocaine offenses, appeals

the district court’s ruling on his motion under 18 U.S.C. § 3582(c)(2). After
review, we affirm.

       In 1998, following a jury trial, Brodie was convicted of five crack-cocaine

offenses relating to a scheme to import drugs into the United States. At the

original sentencing, the district court imposed a 328-month sentence, in the middle

of the then-applicable guidelines range of 292 to 365 months’ imprisonment.

       In May 2008, Brodie filed his § 3582(c)(2) motion based on Amendment

706 to the Sentencing Guidelines, which lowered the base offense levels applicable

to crack cocaine offenses. See U.S.S.G. App. C, amends. 706, 713. The district

court granted in part Brodie’s motion and reduced Brodie’s 328-month sentence to

264 months’ imprisonment, in the middle of Brodie’s new guidelines range of 235

to 293 months’ imprisonment.1 Brodie appeals the extent of the reduction, arguing

that the district court should have imposed a 235-month sentence, at the low end of

the new guidelines range.2

       If a defendant is eligible for a § 3582(c)(2) reduction, the district court “may

reduce the term of imprisonment, after considering the factors set forth in section


       1
         Pursuant to the district court’s instructions, the parties conferred and filed a joint
stipulation that Brodie was eligible for a sentence reduction and that, under Amendment 706,
Brodie’s sentence could be reduced by as much as 93 months or to a total term of 235 months’
imprisonment. Brodie requested that the court exercise its discretion and reduce the sentence to
235 months, and the government did not oppose this request.
       2
        We review for an 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. 2003).

                                                2
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).3 The commentary to U.S.S.G. § 1B1.10 provides that, in determining

the extent of any reduction, the court shall consider the 18 U.S.C. § 3553(a)

factors, as well as the “the nature and seriousness of the danger to any person or

the community that may be posed by a reduction in the defendant’s term of

imprisonment . . . .” U.S.S.G. § 1B1.10 cmt. n.1(B)(i)-(ii). “The court may

consider post-sentencing conduct of the defendant that occurred after imposition of

the original term of imprisonment in determining . . . the extent of such reduction

. . . .” Id. § 1B1.10 cmt. n.1(B)(iii). “The district court is not required to articulate

specifically the applicability, if any, of each factor, as long as the record as a whole

demonstrates that the pertinent factors were taken into account by the district

court.” United States v. Vautier, 144 F.3d 756, 762 (11th Cir. 1998) (quotation

marks omitted).

       The district court did not abuse its discretion by reducing Brodie’s sentence

to the mid-point of the new, amended guidelines range. The district court


       3
         “The factors to be considered under section 3553(a) include: (1) the nature and
circumstances of the offense and the history and characteristics of the defendant; (2) the need for
the sentence imposed; (3) the kinds of sentences available; (4) the applicable sentencing range
under the guidelines; (5) any pertinent Sentencing Commission policy statement; (6) the need to
avoid unwarranted sentence disparities among defendants; and (7) the need to provide restitution
to victims.” United States v. Brown, 104 F.3d 1254, 1255 (11th Cir. 1997).

                                                 3
considered the § 3553(a) factors, citing specifically the nature and seriousness of

the offense, the need to promote respect for the law, to deter other and to protect

the public. The district court also considered Brodie’s submissions relating to his

post-sentencing rehabilitative conduct, and concluded that, although these

accomplishments were commendable, a low-end sentence would be insufficient to

serve the purposes of sentencing. The district court also explained that, because

Brodie was originally sentenced at the middle of the then-applicable guidelines

range, a sentence at the middle of the amended range was appropriate. See

Vautier, 144 F.3d at 760 (explaining that the district court must determine the

sentence it would have imposed, given the defendant’s amended guidelines range

and holding all other guidelines findings made at the original sentencing hearing

constant). We cannot say that the refusal to extend the reduction to the low end of

the new range was an abuse of discretion.

      For the first time on appeal, Brodie argues that the district court should have

imposed a sentence below the new range and that it is unclear whether the district

court knew it had authority to do so under United States v. Booker, 543 U.S. 220,

125 S. Ct. 738 (2005). Because Brodie did not ask for a sentence below the new

range or raise his Booker argument in the district court, our review is limited to

plain error. United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005).



                                            4
      In United States v. Jones, this Court concluded “‘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.” ___

F.3d ___, 2008 WL 4934033, at *2 (11th Cir. Nov. 19, 2008) (quoting Moreno,

421 F.3d at 1220). At first blush, this seems to resolve the issue. However, in

Jones, there was no basis for entertaining a § 3582(c)(2) motion at all. Here,

Brodie’s sentence was “based on a sentencing range that had been subsequently

lowered by the Sentencing Commission,” as required by § 3582(c)(2). The

question thus becomes, once the district court determines that a defendant is

eligible for a § 3582(c)(2) reduction, is the district court’s discretion cabined by the

new, amended guidelines range in a § 3582(c)(2) proceeding, or can the district

court reduce the sentence further based on Booker.

      The two circuits to address this question, have reached different answers.

See United States v. Rhodes, ___ F.3d ___, 2008 WL 5102247, at * 6-7 (10th Cir.

Dec. 5, 2008) (concluding that Booker’s remedial holding does not apply to

§ 3582(c)(2) sentence modifications and that a district court lacks authority to

impose a sentence below the amended guideline range); United States v. Hicks,

472 F.3d 1167, 1172-73 (9th Cir. 2007) (concluding that, after Booker, a district

court can go below the amended guideline range in modifying a sentence under



                                           5
§ 3582(c)(2) and “to the extent the [Sentencing Guidelines’] policy statements are

inconsistent with Booker by requiring the Guidelines to be treated as mandatory,

the policy statements must give way”).

       Because our review is for plain error only, we need not resolve this question

here. Even assuming arguendo the district court believed it lacked authority to

reduce Brodie’s sentence below the low end of the new guidelines range, any

alleged Booker error was not plain given the lack of binding precedent in our

Circuit. In addition, the district court did not go as low as it could have gone under

the amended guidelines range, which strongly suggests that the district court would

not have imposed a below-guidelines sentence in Brodie’s case even if it had

believed Booker permitted it to do so. Finally, since the district court did not abuse

its discretion in refusing to impose a sentence at the low end of the new guidelines

range, we cannot say the district court committed plain error by failing to impose

an even lower sentence.4

       AFFIRMED.




       4
         We lack jurisdiction to review Brodie’s Apprendi claim because it is outside the scope
of a § 3582(c)(2) proceeding. See 18 U.S.C. § 3582(c)(2) (limiting proceedings under the statute
to cases where retroactive amendments affect the applicable guidelines); United States v. Bravo,
203 F.3d 778, 781-82 (11th Cir. 2000) (explaining that there is no jurisdiction in a § 3582(c)(2)
proceeding to consider “extraneous resentencing issues,” such as the defendant’s Eighth
Amendment claim that his sentence constituted cruel and unusual punishment, and noting that
this claim is properly pursued under 28 U.S.C. § 2255).

                                                6
