                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-12343         ELEVENTH CIRCUIT
                                   Non-Argument Calendar    NOVEMBER 18, 2010
                                 ________________________        JOHN LEY
                                                                  CLERK
                          D.C. Docket No. 2:02-cr-00007-MEF-CSC-2

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                Plaintiff-Appellee,

                                             versus

ARTRONE CHEATHAM,
a.k.a. "Moochie",

lllllllllllllllllllll                                             Defendant-Appellant.

                                ________________________

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

                                     (November 18, 2010)

Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:

         In 2003, Artrone Cheatham was convicted of conspiracy to possess with
intent to distribute 50 grams or more of crack cocaine. In determining Cheatham’s

sentencing guideline range, the court found that he was responsible for 30

kilograms of crack, which corresponded to a base offense level of 38. After

calculating the guideline range as 235 to 293 months’ imprisonment, the court

sentenced Cheatham to 235 months’ imprisonment.

      In 2008, Cheatham filed a pro se motion for a reduction in sentence, 18

U.S.C. § 3582(c), arguing that Amendment 706 of the sentencing guidelines

lowered the base offense levels for crack offenses. The district court denied the

motion, finding that Cheatham was ineligible for a reduction because the

amendment had not lowered his base offense level due to the amount of drugs

involved. Cheatham now appeals.

      We review de novo a district court’s conclusions about the scope of its legal

authority under 18 U.S.C. § 3582(c)(2). United States v. Davis, 587 F.3d 1300,

1303 (11th Cir. 2009), cert. denied, 130 S.Ct. 2129 (2010). A district court’s

decision to grant or deny a sentence reduction is reviewed only for an abuse of

discretion. Id.

      A district court may modify a defendant’s term of imprisonment where the

Sentencing Commission has subsequently lowered the sentencing range upon

which the defendant’s sentence was based as long as the reduction is consistent

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

§ 3582(c)(2). A reduction in the term of imprisonment is not consistent with

applicable policy statements–and is, 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).

      Amendment 706, which applies retroactively, provides for a two-level

reduction in the base offense level assigned to certain amounts of crack cocaine.

U.S.S.G. App. C, Amend. 706; U.S.S.G. § 1B1.10(c). Before Amendment 706

took effect, a defendant received a base offense level of 38 if he was held

accountable for 1.5 kilograms or more of crack cocaine; under the amended

version of the guidelines, a base offense level of 38 applies to a defendant held

accountable for 4.5 kilograms or more of crack cocaine. See Davis, 587 F.3d at

1303 (citing U.S.S.G. App. C, Amends. 706, 711, 713; U.S.S.G. § 2D1.1(c)(1)).

      Here, the district court determined that Cheatham was not entitled to relief.

We agree. First, when the district court originally determined Cheatham’s

sentence, it held him responsible for 30 kilograms of crack. Although Cheatham

continues to dispute this quantity, we cannot revisit the district court’s

determination of the amount of drugs for which Cheatham was held responsible.1


      1
          We note that Cheatham failed to raise this argument in his original appeal.

                                                 3
See Davis, 587 F.3d at 1303 (explaining that “in a § 3582(c) resentencing

proceeding, the district court must maintain all original sentencing determinations

apart from the original Guidelines range”) (citation and quotation marks omitted).

      Second, because Cheatham was held responsible for more than 4.5

kilograms of crack, his base offense level remained 38 even under the amended

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

subsequently lowered by Amendment 706, and the district court properly denied

Cheatham’s § 3582(c) motion.

      AFFIRMED.




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