                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                    FILED
                                                            U.S. COURT OF APPEALS
                                No. 09-13425                  ELEVENTH CIRCUIT
                                                               DECEMBER 10, 2009
                            Non-Argument Calendar
                                                               THOMAS K. KAHN
                          ________________________
                                                                    CLERK

                     D. C. Docket No. 99-00077-CR-3-LAC

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                      versus

TYRELL PLAIR,

                                                              Defendant-Appellant.


                          ________________________

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

                              (December 10, 2009)

Before CARNES, HULL and MARCUS, Circuit Judges.

PER CURIAM:

     Tyrell Plair, a federal prisoner convicted of a crack cocaine offense, appeals
the district court’s denial of his pro se 18 U.S.C. § 3582(c)(2) motion for a

sentence reduction. After review, we affirm.1

       Under § 3582(c)(2), may modify a defendant’s term of imprisonment if the

defendant’s sentence was “based on a sentencing range that has subsequently been

lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o) . . . .” 18

U.S.C. § 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(2). However, “[w]here a

retroactively applicable guideline amendment reduces a defendant’s base offense

level, but does not alter the sentencing range upon which his or her sentence was

based, § 3582(c)(2) does not authorize a reduction in sentence.” Moore, 541 F.3d

at 1330; see also U.S.S.G. § 1B1.10(a)(2)(B). A reduction is not authorized if the

amendment does not lower a defendant’s applicable guidelines range “because of

the operation of another guideline or statutory provision (e.g., a statutory

mandatory minimum term of imprisonment).” U.S.S.G. § 1B1.10 cmt. n.1(A).

       Here, Plair’s § 3582(c)(2) motion is based on Amendment 706 to the

Sentencing Guidelines, which reduced the base offense levels in U.S.S.G.

§ 2D1.1(c) applicable to most crack cocaine offenses. However, at his original

sentencing, Plair was subject to a statutory mandatory minimum term of twenty


       1
        “In a § 3582(c)(2) proceeding, we review de novo the district court’s legal conclusions
regarding the scope of its authority under the Sentencing Guidelines.” United States v. Moore,
541 F.3d 1323, 1326 (11th Cir. 2008) (quotation marks omitted), cert. denied, 129 S. Ct. 965
(2009).

                                                2
years’ imprisonment, pursuant to 21 U.S.C. § 841(b)(1)(A), in light of his prior

felony drug conviction. Thus, Plair’s sentencing range was not based on the

amount of crack cocaine attributed to him under U.S.S.G. § 2D1.1(c), but on the

statutory mandatory minimum. See U.S.S.G. § 5G1.1(b). As such, Amendment

706 had no effect on Plair’s sentencing range of twenty years’ imprisonment.

      Plair argues that the district court erred at his original sentencing when it

imposed the twenty-year statutory mandatory minimum because his prior

conviction was not final when he commenced this federal drug offense. This

argument cannot be raised in a § 3582(c)(2) motion because the issue relates to an

original sentencing determination and not to a guideline amendment that has

subsequently lowered Plair’s sentencing range. See United States v. Moreno, 421

F.3d 1217, 1220 (11th Cir. 2005) (explaining that in a § 3582(c)(2) proceeding all

original sentencing determinations remain the same except the guideline range that

has since been amended).

      Plair’s argument that his sentence is unreasonable based on Kimbrough v.

United States, 552 U.S. 85, 128 S. Ct. 558 (2007), is foreclosed by our precedent.

See United States v. Melvin, 556 F.3d 1190, 1192 (11th Cir. 2009) (concluding

that Kimbrough does not “prohibit the limitations on a judge’s discretion in

reducing a sentence imposed by § 3582(c)(2) and the applicable policy statement



                                           3
by the Sentencing Commission”), cert. denied, 129 S. Ct. 2382 (2009); United

States v. Jones, 548 F.3d 1366, 1369 (11th Cir. 2008) (concluding that United

States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005) does not provide a basis on

which to grant a § 3582(c)(2) motion), cert. denied, 129 S. Ct. 1657 (2009).

      Thus, the district court did not have the authority to reduce Plair’s sentence

and properly denied Plair’s § 3582(c)(2) motion.

      AFFIRMED.




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