                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                         DECEMBER 2, 2009
                            No. 08-13871                 THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________

                    D. C. Docket No. 89-00059-CR-4


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

BYRON LESTER THOMPSON,

                                                        Defendant-Appellant.


                      ________________________

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

                           (December 2, 2009)

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



      Byron Lester Thompson appeals the district court’s denial of his motion for

reconsideration of the order denying him a sentence reduction under 18 U.S.C. §

3582(c)(2) and Amendment 706 to the Sentencing Guidelines. No reversible error

has been shown; we affirm.

      We review the denial of a motion for reconsideration for an abuse of

discretion. United States v. Simms, 385 F.3d 1347, 1356 (11th Cir. 2004). A

district court abuses its discretion when it makes an error of law. United States v.

Gari, 572 F.3d 1352, 1361 (11th Cir. 2009).

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

district court may reduce an already incarcerated defendant’s term of imprisonment

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); see

also U.S.S.G. § 1B1.10(a)(1). A reduction of a term of imprisonment is not

“consistent with applicable policy statements issued by the Sentencing

Commission” -- and is, therefore, unauthorized 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). Amendment 706



                                          2
retroactively reduced by two the base offense levels in crack cocaine sentences

calculated pursuant to the drug quantity table, U.S.S.G. § 2D1.1(c).

       Thompson pleaded guilty to participating in a continuing criminal enterprise

in violation of 21 U.S.C. § 848. Pursuant to the guideline for this offense

(U.S.S.G. § 2D1.5), Thompson’s base offense level was set at 36.1 The district

court applied a two-level upward departure to Thompson’s offense level based on

an application note in section 2D1.5, which provided that, in cases where the drug

quantity exceeded substantially the amount required for a base offense level of 36

in the drug quantity table, an upward departure may be warranted. See U.S.S.G. §

2D1.5 comment. (n.2) (15 Oct. 1988). A base offense level of 36 (the highest then

available) applied to at least 500 grams but less than 1.5 kilograms of crack

cocaine; and evidence indicated that Thompson had been involved with between 5

and 15 kilograms of crack cocaine.

       The district court denied Thompson’s section 3582(c)(2) motion and his

later motion for reconsideration because Amendment 706 did not lower his

guidelines range. That Thompson’s base offense level was not calculated pursuant

to the drug quantity table in section 2D1.1 is clear. While drug quantity factored

into the court’s decision to depart upward, it did not factor into the initial selection


       1
        The 1988 version of the Sentencing Guidelines was used to calculate Thompson’s
guidelines range.

                                             3
of his base offense level. See United States v. Moore, 541 F.3d 1323, 1327-28

(11th Cir. 2008), cert. denied, McFadden v. United States, 129 S.Ct. 965 (2009),

and cert. denied, 129 S.Ct. 1601 (2009) (concluding that defendants sentenced as

career offenders under U.S.S.G. § 4B1.1 were ineligible for sentence reductions

under Amendment 706 because their guidelines ranges were not based on the drug

quantity offense levels that had been lowered by Amendment 706).

       To the extent that drug quantity impacted on Thompson’s final offense level,

he still was ineligible for a sentence reduction under Amendment 706. Now, the

highest base offense level for drug offenses -- 38 -- applies to offenses involving

4.5 kilograms or more of crack cocaine. See U.S.S.G. § 2D.1.1(c)(1). Thompson

was involved with between 5 and 15 kilograms of crack cocaine. Thus, the drug

quantity attributable to him precluded him from a sentence reduction. See United

States v. Jones, 548 F.3d 1366, 1369 (11th Cir. 2008), cert. denied, 129 S.Ct. 1657

(2009) (explaining that the highest base offense level “still applies to defendants

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

       The district court applied correctly the law on Amendment 706 and

committed no abuse in denying reconsideration.2


       2
        To the extent Thompson argues that United States v. Booker, 125 S.Ct. 738 (2005), and
Kimbrough v. United States, 128 S.Ct. 558 (2007), allow the district court to reduce his
sentence, we have concluded that these and other cases providing for discretionary downward
variances from the sentencing range are inapplicable to section 3582(c)(2) proceedings. United

                                               4
       AFFIRMED.3




States v. Melvin, 556 F.3d 1190, 1192-93 (11th Cir.), cert. denied, 129 S.Ct. 2382 (2009). And
these cases also provide no independent jurisdictional basis for reducing a sentence of an
otherwise ineligible defendant. See Jones, 548 F.3d at 1369.
       3
        Thompson’s appellate argument that the government breached its plea agreement with
him and that this breach violated his due process rights is beyond the scope of a section
3582(c)(2) proceeding, and we need not address it. See 18 U.S.C. § 3582(c)(2) (limiting
proceedings under this statute to cases where a retroactive amendment affects the applicable
guidelines range).

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