                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                Nov. 19, 2009
                               No. 09-11234                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                 D. C. Docket No. 96-00015-CR-FTM-29-DNF

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

MIGUEL RODRIGUEZ,
a.k.a. Papo,

                                                             Defendant-Appellant.


                         ________________________

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

                              (November 19, 2009)

Before BARKETT, MARCUS and ANDERSON , Circuit Judges.

PER CURIAM:

     Miguel Rodriguez, through counsel, appeals the district court’s denial of his
motion for a sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2). Rodriguez

argues that the district court erred by denying his motion for a sentence reduction

because, even though the presentence investigation report (“PSI”) found him

responsible for 53 kilograms of cocaine base, he was sentenced based on a broader

finding of only 1.5 kilograms or more of cocaine base, so Amendment 706 reduced

his guideline range. He also argues that his due process rights were violated, and

that Amendment 706 preserves the sentencing disparity between crack cocaine and

powder cocaine offenses.

      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

based on a guideline range that the Sentencing Commission subsequently lowered.

18 U.S.C. § 3582(c)(2).

      Amendment 706 to the Sentencing Guidelines reduced base offense levels

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

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.”

Id. at 1369; see also U.S.S.G. § 2D1.1(c)(2). “However, a base offense level of 38



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still applies to defendants responsible for 4.5 kilograms or more.” Jones, 548 F.3d

at 1368; see also U.S.S.G. § 2D1.1(c)(1). Thus, if a defendant is responsible for at

least 4.5 kilograms of crack cocaine, Amendment 706 does not reduce his

applicable guideline range. Jones, 548 F.3d at 1369. A defendant is ineligible for

a sentence reduction under § 3582(c)(2) if his guideline range is not reduced by a

guideline amendment. Id.

      The district court properly denied Rodriguez’s motion for relief under

§ 3582(c)(2) because Amendment 706 did not affect his guideline range. Because

the sentencing court held Rodriguez accountable for the conspiracy’s estimated

distribution of 53 kilograms of cocaine base, he was ineligible for a sentence

reduction, pursuant to § 3582(c)(2). Furthermore, the district court’s denial of

Rodriguez’s § 3582(c)(2) motion did not violate his due process rights because the

court was required to preserve the original sentencing determinations, and

Rodriguez had the opportunity to contest the drug amount at his original

sentencing. Lastly, this appeal is not the proper forum to contest the Sentencing

Commission’s manner of implementing Amendment 706.

      AFFIRMED.




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