                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                          AUGUST 3, 2009
                            No. 08-12672                 THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________


                 D. C. Docket No. 90-00016-CR-CB-002


UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus


STEPHANIE NODD,

                                                        Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                  for the Southern District of Alabama
                     _________________________

                            (August 3, 2009)

Before EDMONDSON, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:

       Stephanie Nodd, a pro se federal prisoner convicted of a crack cocaine

offense, appeals the denial of her motion to reduce her 360-month sentence, 18

U.S.C. § 3582(c)(2). No reversible error has been shown; we affirm.

       Nodd originally was assigned a base offense level of 40, based on her

possession of 8 kilograms of crack cocaine. Her guidelines range was life

imprisonment. But the district court departed downwardly and imposed a 360-

month sentence because Nodd was not as culpable as leaders of the conspiracy

who had received life sentences.1

       Nodd filed her first section 3582(c)(2) motion pursuant to Amendment 505

to the Sentencing Guidelines.2 The district court acknowledged that Amendment

505 reduced the maximum base offense level in crack cocaine cases to 38 and

noted that, with a base offense level of 38, Nodd’s guidelines range would be 324

to 405 months. But the court denied the motion, concluding that a sentence

reduction was inappropriate in Nodd’s case because her original sentence


       1
         On Nodd’s direct appeal, we remanded her case to the district court for resentencing so
that the court could make specific findings about the scope of her participation in the conspiracy
and the quantity of drugs attributable to her. On remand, the district court again imposed a 360-
month sentence.
       2
        Amendment 505, which became effective after Nodd was sentenced and is retroactively
applicable, reduced the upper limits of the U.S.S.G. § 2D1.1 drug quantity table and capped the
base offense level at 38 for a defendant who is accountable for 1.5 kilograms or more of cocaine
base. U.S.S.G. App. C, Amend. 505.

                                                 2
represented a substantial departure, both from her original guidelines range and the

range calculated under Amendment 505.

      In the instant section 3582(c)(2) motion, Nodd sought a sentence reduction

pursuant to Amendment 706, which changed the threshold drug quantity for a base

offense level of 38 from 1.5 to 4.5 kilograms of crack cocaine. She argued that

both Amendments 505 and 706 reduced the maximum base offense level for crack

cocaine offenses to 38; so, because her offense level remained at 40, she was

entitled to have her base offense level reduced to 38. The district court concluded

that Amendment 706 did not apply to Nodd because she had been held accountable

for 8 kilograms of crack cocaine, and, thus, the amendment did not lower her

guidelines range.

      We review de novo the district court’s legal conclusions and questions of

statutory interpretation in a section 3582(c)(2) proceeding. United States v.

Moore, 541 F.3d 1323, 1326 (11th Cir. 2008), cert. denied, McFadden v. United

States, 129 S.Ct. 965 (2009), and cert. denied, (U.S. Mar. 9, 2009) (No. 08-8554).

On appeal, Nodd repeats her argument that she is entitled to have her base offense

level reduced to 38 pursuant to Amendment 706.

      When a sentencing guideline is amended and given retroactive effect, the

district court, “after considering the factors set forth in [18 U.S.C. §] 3553(a) to the



                                            3
extent that they are applicable,” may reduce a previous sentence under the

amendment “if such a reduction is consistent with applicable policy statements

issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). A reduction of a

term of imprisonment is not “consistent with applicable policy statements issued

by the Sentencing Commission” -- and is, therefore, not authorized under section

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).

      After Amendment 706, the maximum base offense level of 38 in crack

cocaine cases corresponds to 4.5 kilograms or more of crack cocaine instead of 1.5

kilograms or more. So, because Nodd was held accountable for 8 kilograms of

crack cocaine, Amendment 706 does not have the effect of lowering her guidelines

range and the district court committed no error in denying her section 3582(c)(2)

motion. The applicability of Amendment 706 is driven by drug quantity; the

amendment was designed to lower the base offense levels only of those defendants

attributed with less than 4.5 kilograms of crack cocaine. See United States v.

Jones, 548 F.3d 1366, 1369 (11th Cir. 2008), cert. denied (U.S. Mar. 23, 2009)

(No. 08-8865) (explaining that “a base offense level of 38 still applies to

defendants responsible for 4.5 kilograms or more” of crack cocaine).

      Nodd takes issue with her base offense level of 40. But Amendment 505,



                                           4
not Amendment 706, gave Nodd the opportunity to have her base offense level

reduced to the current cap of 38. Contrary to Nodd’s assertion, Amendment 706

did not affect the base offense level cap of 38 established by Amendment 505; the

cap of 38 remained unchanged after Amendment 706. That the district court, in its

discretion, chose not to reduce Nodd’s sentence under Amendment 505 is

unimportant to the resolution of the present appeal.3

       Nodd also argues that her original sentence incorrectly was calculated

because the district court applied the guidelines in effect at the time of sentencing

instead of when she committed the offense. She characterizes this as an ex post

facto violation that this Court now can correct to prevent manifest injustice. But

Nodd’s challenges to the original calculation of her sentence are beyond the scope

of a section 3582(c)(2) proceeding, and we need not address them. See 18 U.S.C.

§ 3582(c)(2) (limiting proceedings under this statute to cases where a retroactive

amendment affects the applicable guidelines range).

       AFFIRMED.




       3
        In the prior section 3582(c)(2) proceedings, the court did not explicitly change Nodd’s
base offense level; but the court did acknowledge that Nodd’s base offense level would be 38
under the amended guideline.

                                                5
