                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                              MAR 12, 2009
                                No. 08-14868                THOMAS K. KAHN
                            Non-Argument Calendar               CLERK
                          ________________________

                    D. C. Docket No. 88-01007-CR-1-MMP

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

RUFUS C. ROCHELLE,

                                                           Defendant-Appellant.

                          ________________________

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

                               (March 12, 2009)

Before DUBINA, MARCUS and FAY, Circuit Judges.

PER CURIAM:

      Rufus C. Rochelle, a federal prisoner convicted of conspiracy to possess

with intent to distribute more than 50 grams of crack cocaine, in violation of 21
U.S.C. §§ 841(a)(1) and 846, appeals the district court’s denial of his pro se motion

to reduce sentence, pursuant to 18 U.S.C. § 3582(c)(2).        On appeal, Rochelle

argues that the district court abused its discretion in denying his motion for a

sentence reduction based on Amendment 706 to the Sentencing Guidelines. After

careful review, we affirm.

      “We review a district court’s decision whether to reduce a sentence pursuant

to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing

guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343

(11th Cir. 2003).   “[W]e review de novo the district court’s legal conclusions

regarding the scope of its authority under the Sentencing Guidelines.”        United

States v. White, 305 F.3d 1264, 1267 (11th Cir.2002).

      A district court generally cannot modify a term of imprisonment after it has

been imposed. United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005).

However, there is an exception under 18 U.S.C. § 3582(c)(2) that provides:

             [When] a defendant . . . has been sentenced to a term of
             imprisonment based on a sentencing range that has
             subsequently been lowered by the Sentencing Commission
             pursuant to 28 U.S.C. § 944(o), . . . the court may reduce the
             term of imprisonment, after considering the factors set forth in
             [18 U.S.C. § 3553(a)] to the extent that they are applicable, if
             such a reduction is consistent with applicable policy statements
             issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2).

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      Amendment 706 to the Sentencing Guidelines reduced by two levels the

base offense level for certain crack cocaine cases calculated under U.S.S.G. §

2D1.1(c). U.S.S.G. App. C, Amend. 706. The amendment became effective on

November 1, 2007. Id. The Sentencing Commission listed Amendment 706 in

§ 1B1.10(c) on March 3, 2008, thereby making the amendment retroactively

applicable. See U.S.S.G. App. C, Amend. 713. However, a movant is not entitled

to a resentencing pursuant to Amendment 706 when the provisions of that

amendment do not result in a lower base offense level and Guidelines range.

United States v. James, 548 F.3d 983, 986 (11th Cir. 2008).         In James, the

defendant’s base offense level did not change because the conspiracy that included

him involved 10 to 15 kilograms of crack cocaine. Id. at 985. Under the amended

Guidelines, a defendant accountable for 4.5 kilograms or more of crack cocaine

receives a base offense level of 38. U.S.S.G. § 2D1.1(c)(1).

      In addition, sentencing adjustments under § 3582(c)(2) do not constitute de

novo resentencing. Moreno, 421 F.3d at 1220. Rather, all “original sentencing

determinations remain unchanged with the sole exception of the guideline range

that has been amended since the original sentencing.” Id. (quotation omitted).

Thus, § 3582(c)(2) does not “grant to the court jurisdiction to consider extraneous

sentencing issues,” United States v. Bravo, 203 F.3d 778, 782 (11th Cir. 2000), and



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a district court should leave intact its previous factual decisions from the

sentencing hearing, including drug quantity calculations, when deciding whether to

reduce a defendant’s sentence. See United States v. Cothran, 106 F.3d 1560, 1563

(11th Cir. 1997) (holding that the district court correctly declined in a § 3582

proceeding to re-examine the number of marijuana plants involved in the drug

offense). Finally, we recently held that Booker does not apply to § 3582(c)(2)

proceedings. United States v. Melvin, No. 08-13497, manu. op. at 2, 7 (11th Cir.

Feb. 3, 2009).

      We find no merit to Rochelle’s claim that the district court abused its

discretion in denying his § 3582 motion. As the record shows, the Presentencing

Investigation Report (“PSI”) held Rochelle accountable through the conspiracy for

24 kilograms of crack cocaine, the district court adopted the PSI’s findings over

Rochelle’s drug quantity objections, and Rochelle was given a base offense level

of 36 at sentencing for that amount of crack cocaine. Yet pursuant to Amendment

706, Rochelle would now receive a base offense level of 38 because he was held

accountable for more than 4.5 kilograms of crack cocaine.           See U.S.S.G.

§ 2D1.1(c)(1).   As a result, Rochelle was not entitled to a sentence reduction

because Amendment 706 did not lower his base offense level or Guideline range.

See James, 548 F.3d at 986.



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      Nor did the district court abuse its discretion by sentencing Rochelle based

on 24 kilograms of crack cocaine without making individualized findings

regarding the drug quantity attributable to him as opposed to the conspiracy as a

whole. The PSI and sentencing transcript show that he was sentenced based on a

finding that the overall offense involved 24 kilograms of crack cocaine, and that

Rochelle was accountable, through the conspiracy, for that entire amount.

Although the district court did not specifically make a finding as to Rochelle’s

accountability alone, the finding that he was accountable through the conspiracy

for 24 kilograms of crack cocaine must remain unchanged in a § 3582(c)(2)

proceeding.    See   Cothran, 106 F.3d at 1563.     In addition, to the extent that

Rochelle nonetheless sought to be resentenced under Booker and an advisory

Guideline system, we have held that Booker does not apply to § 3582(c)(2)

proceedings. See Melvin, No. 08-13497, manu. op. at 2, 7.

      In short, Amendment 706 did not lower Rochelle’s base offense level or

Guideline range and he was not entitled to a resentencing pursuant to § 3582(c)(2).

Accordingly, the district court did not abuse its discretion in denying Rochelle’s §

3582 motion.

      AFFIRMED.




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