                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                               No. 08-16606                 ELEVENTH CIRCUIT
                                                                APRIL 24, 2009
                           Non-Argument Calendar
                                                             THOMAS K. KAHN
                         ________________________
                                                                  CLERK

                  D. C. Docket No. 92-00247-CR-T-17-TGW

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

EARNEST TIMOTHY RAINEY,

                                                           Defendant-Appellant.


                         ________________________

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

                                (April 24, 2009)

Before TJOFLAT, BIRCH and FAY, Circuit Judges.

PER CURIAM:

     Earnest Timothy Rainey, incarcerated for crack cocaine offenses, appeals the
district court’s denial of a sentence reduction under 18 U.S.C. § 3582(c)(2).

Rainey argues that his mandatory minimum sentence should be set aside because

no drug quantity was ever alleged or proven to the jury beyond a reasonable doubt,

in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000).

Consequently, Rainey contends that Amendment 706 to the Sentencing Guidelines

lowered his base offense level and he is entitled to a sentence reduction. We reject

these arguments and AFFIRM.

                                I. BACKGROUND

      A jury convicted Rainey in 1993 of conspiracy to possess with intent to

distribute cocaine base, in violation of 21 U.S.C. § 846, and possession with intent

to distribute cocaine base, in violation of 21 U.S.C. § 841. Based on Rainey’s prior

conviction for a felony drug offense, he was subject to a twenty-year minimum

mandatory sentence under 21 U.S.C. § 841(b)(1)(A). At the sentencing hearing,

Rainey did not dispute the applicability of the statutory minimum mandatory

sentence. He only requested that the court sentence him to the low end of his

guideline range – twenty years of imprisonment. The district court acquiesced and

imposed concurrent sentences of twenty years (240 months of imprisonment) as to

each count.

      In February 2008, the district court, acting on its own motion pursuant to



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§ 3582(c)(2), appointed counsel for Rainey to determine the effect of Amendment

706 on Rainey’s sentence. Amendment 706 permits a sentence reduction “if that

sentence was based on the § 2D1.1 offense level for crack cocaine offenses.”

United States v. Williams, 549 F.3d 1337, 1339 (11th Cir. 2008) (per curiam).

After evaluating responses from Rainey, the government, and the probation office,

the district court determined that Rainey was not eligible for a sentence reduction

under Amendment 706. This appeal followed.

                                 II. DISCUSSION

      We review a district court’s denial of a § 3582(c)(2) motion for abuse of

discretion, and its legal interpretations de novo. See Williams, 549 F.3d at 1338-

39. A district court may modify a defendant’s sentence that was based on a

sentencing range which was subsequently lowered by the Sentencing Commission.

See 18 U.S.C. § 3582(c)(2). Any reduction, however, must be “consistent with

applicable policy statements issued by the Sentencing Commission.” Id. The

applicable policy statements expressly prohibit a reduction where an “amendment

does not have the effect of lowering the defendant’s applicable guideline 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,

comment. (n.1(A)) (2008). Accordingly, Amendment 706 has no effect on a



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sentence that was based on a statutory mandatory minimum, rather than on a base

offense level in § 2D1.1. See Williams, 549 F.3d at 1342. Furthermore, because a

sentencing adjustment under § 3582(c)(2) does not constitute a de novo

resentencing, the district court must leave intact all original sentencing

determinations except for the amended guideline range. See United States v.

Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005) (per curiam).

      Here, Rainey’s sentence was based on the statutory mandatory minimum of

twenty years of imprisonment, which applied because of his previous felony drug

conviction. The district court was not authorized under § 3582(c)(2) to revisit that

sentencing determination. See id. Because Rainey’s sentence was not based on an

offense level under § 2D1.1(c), it did “not fall within the scope of Amendment

706.” Williams, 549 F.3d at 1342 (concluding that Williams was not entitled to a

sentence reduction under Amendment 706 because he was subject to a statutory

mandatory minimum that replaced his original sentencing guideline range under

§ 2D1.1). Accordingly, the district court did not err in concluding that Rainey was

ineligible for a sentence reduction under Amendment 706. See id.

      Furthermore, a § 3582(c)(2) motion is not the proper forum for Rainey’s

argument that his mandatory minimum sentence violated Apprendi. The plain

language of § 3582(c)(2) only permits modifications to a sentence based on



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guideline amendments by the Sentencing Commission, not Supreme Court

decisions. See 18 U.S.C. § 3582(c)(2); see also Moreno, 421 F.3d at 1220

(concluding that “Booker is inapplicable to § 3582(c)(2) motions” because

“Booker is a Supreme Court decision, not a retroactively applicable guideline

amendment by the Sentencing Commission”). As a result, Apprendi cannot be

used as a basis for a § 3582(c)(2) motion.

                                III. CONCLUSION

      The district court correctly determined that Amendment 706 did not alter

Rainey’s sentence because he was sentenced according to the statutory mandatory

minimum. Accordingly, we AFFIRM the district court’s denial of a sentence

reduction under § 3582(c)(2).

      AFFIRMED.




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