                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-11204                ELEVENTH CIRCUIT
                                                             JULY 1, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                 D. C. Docket No. 98-00433-CR-T-24-EAJ

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

DARRELL BURNEY,
a.k.a. Jimmy,
a.k.a. Burney,
a.k.a. Bean,

                                                         Defendant-Appellant.


                       ________________________

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

                               (July 1, 2009)

Before MARCUS, PRYOR and FAY, Circuit Judges.

PER CURIAM:
       Darrell Burney, through counsel, appeals the district court’s denial of his

motion for a sentencing reduction, pursuant to 18 U.S.C. § 3582(c)(2). For the

reasons set forth below, we affirm.

                                              I.

       In 1999, a jury found Burney and other codefendants guilty of conspiracy to

possess with intent to distribute 50 grams or more of crack cocaine, in violation of

21 U.S.C. §§ 846 and 841(a)(1). In preparing a pre-sentence investigation report

(“PSI”), the probation officer conservatively estimated that Burney was responsible

for 22.5 kilograms of crack cocaine. As a result, the probation officer determined

that Burney had a base offense level of 38 under U.S.S.G. § 2D1.1 because he was

accountable for “1.5 kilograms or more” of crack cocaine.1 This became Burney’s

total adjusted offense level, as no enhancements or adjustments were applied. The

probation officer determined that Burney had a criminal history category of II,

which, when combined with his offense level of 38, gave Burney an applicable

guideline range of 262-327 months’ imprisonment.

       Burney raised two objections at sentencing. First, he argued that he was

entitled to a minor-role reduction under U.S.S.G. § 3B1.2, but, notably, in



       1
         The probation officer used this metric because, at the time of sentencing – before the
promulgation of Amendment 706 – a defendant received a base offense level of 38 if he was held
accountable for 1.5 kilograms or more of crack cocaine. See U.S.S.G. § 2D1.1(c)(1) (1998).

                                              2
presenting this objection at sentencing, Burney did not reference the probation

officer’s drug-quantity calculation. The district court rejected Burney’s argument,

noting, inter alia, that Burney “distributed a substantial amount of cocaine.”

Second, Burney argued that he was entitled to a downward departure under

U.S.S.G. § 4A1.3 based on the over-representation of his criminal history. The

district court agreed and granted Burney a one-level downward departure to a

criminal history category of I, which gave Burney an applicable guideline range of

235-293 months’ imprisonment. The court asked defense counsel if there were any

additional objections, and counsel responded that there were not. The district court

thereafter adopted the factual findings and guideline calculations in the PSI and

sentenced Burney to 235 months’ imprisonment. We affirmed Burney’s

conviction and sentence on direct appeal.

      In October 2008, and relying on Amendment 706 to the Guidelines, Burney

filed a pro se motion for a sentencing reduction, pursuant to 18 U.S.C.

§ 3582(c)(2). The district court appointed Burney counsel, who then submitted a

memorandum in support of Burney’s motion. Counsel, inter alia, implicitly

acknowledged that Burney might be ineligible for a sentencing reduction if he had

been held accountable for 4.5 kilograms or more of crack cocaine, but he argued

that Burney should be held accountable only for 1.5 kilograms or more because the



                                            3
district court never made a specific drug-quantity finding at sentencing.

      The district court denied Burney’s motion, concluding that, because he was

held accountable for 22.5 kilograms of crack cocaine, his offense level remained

38 and, therefore, Amendment 706 would not reduce his applicable guideline

range. This appeal followed.

                                         II.

      “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. James, 548 F.3d

983, 984 (11th Cir. 2008). Under § 3582(c)(2), a district court may modify a

defendant’s term of imprisonment where he “has been sentenced to a term of

imprisonment based on a sentencing range that has subsequently been lowered by

the Sentencing Commission . . . .” 18 U.S.C. § 3582(c)(2). Any such reduction

must also be consistent with the Commission’s applicable policy statements, which

similarly provide that a sentencing reduction is not permitted where 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).

                                         III.

      The district court correctly concluded that Burney was ineligible for a

sentencing reduction because he was held accountable for 4.5 kilograms or more of



                                          4
crack cocaine and, therefore, Amendment 706 would not affect his offense level of

38 or his applicable guideline range. See United States v. Jones, 548 F.3d 1366,

1369 (11th Cir. 2008) (holding that a defendant is ineligible for a sentencing

reduction under Amendment 706 where he is held accountable for 4.5 kilograms or

more of crack cocaine), cert. denied, 129 S.Ct. 1657 (2009); see also U.S.S.G.

§ 2D1.1(c)(1) (2008) (providing for a base offense level of 38 where the defendant

is held accountable for 4.5 kilograms or more of crack cocaine).

      Though Burney is correct that the sentencing court did not expressly make

any drug-quantity findings, it did adopt the factual findings of the PSI, which

included the finding that Burney was accountable for 22.5 kilograms of crack

cocaine. In addition, Burney did not object to this factual finding at sentencing,

thereby admitting it for purposes of sentencing. See United States v. Wade, 458

F.3d 1273, 1277 (11th Cir. 2006) (“It is the law of this circuit that a failure to

object to allegations of fact in a PSI admits those facts for sentencing purposes.”).

In this respect, Burney counters that he did object to the probation officer’s

drug-quantity calculation by requesting a minor-role reduction. However, the most

that can be said is that, in rejecting Burney’s request for a minor-role reduction, the

district court noted that Burney “distributed a substantial amount of cocaine;”

Burney himself never referred, let alone objected, to the probation officer’s



                                            5
drug-quantity calculation.

          Accordingly, we affirm the district court’s denial of Burney’s motion for a

sentencing reduction.2

      AFFIRMED.




      2
           Burney’s remaining arguments on appeal are entirely without merit.

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