                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                  FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                              December 27, 2005
                                No. 05-12489
                                                             THOMAS K. KAHN
                            Non-Argument Calendar                CLERK
                          ________________________

                 D. C. Docket No. 97-00001-CR-ORL-19-DAB

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

JUAN MIGUEL DIEZ,

                                                             Defendant-Appellant.


                          ________________________

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

                              (December 27, 2005)

Before TJOFLAT, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

     In this case, appellant was convicted of conspiracy to possess with intent to
distribute marijuana and cocaine, in violation of 21 U.S.C. § 846. The district

court, adopting the presentence report’s Sentencing Guidelines determination, set

appellant’s base offense level at 43 after applying the cross-reference in U.S.S.G. §

2D1.1(d)(1), which required the court to use U.S.S.G. § 2A1.1 because a victim

was killed under circumstances that would constitute murder. Appellant’s criminal

history category was II, which, at offense level 43, called for a life sentence of

imprisonment. The court sentenced appellant to life imprisonment (after

overruling appellant’s objection to the court finding the relevant murders by a

preponderance of the evidence).

      Appellant appealed his conviction. We affirmed. United States v.

Ridgeway, No. 97-2927 (11th Cir. July 22,1998),

      On April 20, 2005, appellant moved the district court to modify his sentence

pursuant to 18 U.S.C. § 3582(c)(2), contending that he was entitled to have his

sentence reduced under Amendment 591 to the United States Sentencing

Guidelines, which provide that when the court determines the guideline applicable

to the offense conduct, the court must refer to the guideline referenced in the

statutory index for the offense of conviction. He argued that he had been convicted

of a 18 U.S.C. § 846 conspiracy but sentenced pursuant to the guideline applicable

to murder in the first degree. The court denied the motion without explanation, and



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he now appeals.

      Pursuant to 18 U.S.C. § 3582(c)(2), upon the motion of a defendant

sentenced to a term of imprisonment based on a sentence range that was

subsequently lowered by the Sentencing Commission, “the court may reduce the

term of imprisonment, after considering the factors set forth in section 3553(a) to

the extent that they are applicable, if such a reduction is consistent with applicable

policy statements issued by the Sentencing Commission.” The Sentencing

Guidelines explicitly state that Amendment 591 can be retroactively applied upon a

motion under 18 U.S.C. § 3582(c)(2). U.S.S.G. §§ 1B1.10(a),(c). In relevant part,

“Amendment 591 requires that the initial selection of the offense guideline be

based only on the statute or offense of conviction rather than on judicial findings of

actual conduct not made by the jury.” United States v. Moreno, 421 F.3d 1217,

1219-20 (11th Cir. 2005) (holding that Amendment 591 only applies to the

selection of the applicable offense guideline, not the selection of the appropriate

base offense level within that guideline); U.S.S.G. App. C, amend. 591 (2003).

      According to Appendix A of the Sentencing Guidelines, § 2D1.1 is an

appropriate guideline to apply when a defendant has been convicted of an offense

covered under 21 U.S.C. 846. Section 2D1.1(d)(1) states that “[i]f a victim was

killed under circumstances that would constitute murder under 18 U.S.C. § 1111 . .



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., apply §2A1.1 (First Degree Murder).” Section 2A1.1 provides a base offense

level of 43.

      Because the district court chose the correct base offense guideline, and

Amendment 591 does not prevent the court from using offense conduct other than

the offense of conviction to apply a cross-reference within the applicable guideline

for the offense of conviction, the court did not abuse its discretion in denying

appellant’s motion to modify his sentence.

      AFFIRMED.




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