                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              JUNE 11, 2009
                               No. 08-15822                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                 D. C. Docket No. 91-00146-CR-ORL-19-GJK

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

JAMES A. WHEELER,

                                                           Defendant-Appellant.


                         ________________________

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

                                (June 11, 2009)

Before DUBINA, Chief Judge, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

     Appellant James A. Wheeler, a federal prisoner convicted of a crack cocaine
offense, appeals, through counsel, the district court’s denial of his 18 U.S.C. §

3582(c)(2) motion for reduction of sentence based on Amendment 706 to the

United States Sentencing Guidlines § 2D1.1. On appeal, Wheeler argues that the

district court erred in its application of § 3582(c)(2) because his sentence was

greater than the statutory maximum. Wheeler asserts that the jury never made a

factual finding regarding drug quantity, and therefore his statutory maximum was

240 months’ imprisonment, much less than the 370-month sentence imposed by

the district court. Further, he asserts that the drug quantity testimony presented at

sentencing was ambiguous, and the rule of lenity requires that this ambiguity be

resolved in Wheeler’s favor.

      Wheeler acknowledges that Apprendi v. New Jersey, 530 U.S. 466, 120 S.

Ct. 2348, 147 L. Ed. 2d 435 (2000), is not applied retroactively, but asserts that the

§ 3582 proceeding rendered his sentence no longer final. Acknowledging our

precedent that prohibits a district court in a § 3582 proceeding from revisiting prior

sentencing calculations, Wheeler argues that if his sentence was 240 months, i.e.,

the statutory maximum in light of Apprendi, he would have been eligible for a

sentence reduction under Amendment 706. Wheeler asserts that unequal

application of § 3582 based on whether a defendant was sentenced before or after

Apprendi and United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d



                                           2
621 (2005), violates due process and equal protection, because the Sentencing

Commission intended Amendment 706 to be retroactively beneficial to all

offenders. Again acknowledging our contrary precedent, Wheeler argues that

advisory guideline ranges are inherently lower than mandatory guideline ranges.

Finally, he argues that his sentence was greater than necessary for the purposes of

sentencing, and he has rehabilitated himself while in prison.

       “We review de novo a district court’s conclusions about the scope of its legal

authority under 18 U.S.C. § 3582(c)(2).” United States v. Jones, 548 F.3d 1366,

1368 (11th Cir. 2008), cert. denied, 129 S. Ct. 1657 (2009). A district court may

modify a term of imprisonment in the case of a defendant who was sentenced to a

term of imprisonment based on a sentencing range that has subsequently been

lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). However, when

the district court is determining whether to modify a defendant’s sentence pursuant

to § 3582(c)(2), “all original sentencing determinations remain unchanged with the

sole exception of the guideline range that has been amended since the original

sentencing.” United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000) (emphasis

in the original).

       Amendment 706 to the Sentencing Guidelines reduced base offense levels

for crack cocaine offenses. Jones, 548 F.3d at 1368. “Under Amendment 706, the



                                          3
guidelines now provide a base offense level of 36 for defendants who are

responsible for at least 1.5 kilograms but less than 4.5 kilograms of crack cocaine.

However, a base offense level of 38 still applies to defendants responsible for 4.5

kilograms or more.” Id. at 1369 (citations omitted). Thus, if a defendant is

responsible for at least 4.5 kilograms of crack cocaine, Amendment 706 does not

reduce his applicable guideline range, and he is ineligible for a sentence reduction

under § 3582(c)(2). Id. The Supreme Court’s Booker decision does not provide an

independent basis for § 3582 relief, and the transition from mandatory to advisory

guidelines does not grant a district court jurisdiction to reduce a defendant’s

sentence. Id.

      In our view, Wheeler’s guideline range did not change because he was held

accountable for more than 4.5 kilograms of crack. Therefore, we conclude that the

district court correctly determined that it lacked jurisdiction to reduce Wheeler’s

sentence. Section 3582(c) does not provide that a previously imposed sentence is

not final, particularly when the district court lacks jurisdiction to reduce the

sentence pursuant to § 3582. We also conclude that Wheeler’s claims that (1) the

drug quantity testimony at sentencing was ambiguous; (2) he was sentenced over

the statutory maximum because the jury made no finding regarding drug quantity;

and (3) his sentence was greater than necessary are barred because the district court



                                            4
is not permitted to revisit determinations from the original sentence imposed.

Bravo, 203 F.3d at 781. Because Apprendi is not applied retroactively and Booker

does not apply in the § 3582 context, there is no equal protection or due process

violation by not applying those cases to Wheeler. See Varela v. United States, 400

F.3d 864, 867–68 (11th Cir. 2005) (holding in the § 2255 context that Apprendi

and Booker do not apply retroactively). Moreover, the transition from mandatory

to advisory guidelines did not grant the district court jurisdiction to reduce

Wheeler’s sentence. Jones, 548 F.3d at 1369. Finally, Wheeler’s argument that

his post-sentencing rehabilitation entitles him to a reduced sentence incorrectly

assumes that the district court had jurisdiction to reduce his sentence.

      For the above-stated reasons, we affirm the district court’s order denying

Wheeler’s motion for reduction of sentence.

      AFFIRMED.




                                           5
