                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                 DEC 27, 2007
                                No. 06-16067                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                     D. C. Docket No. 91-00413-CR-WPD

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                      versus

NARCISCO F. SUAREZ,
a.k.a. Nene,

                                                             Defendant-Appellant.


                          ________________________

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

                              (December 27, 2007)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Narcisco F. Suarez, proceeding pro se, appeals the district court’s denial of
his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence. In 1991, a grand jury

returned a superseding indictment against Suarez charging him, along with 14

codefendants, with one count of conspiracy to possess a mixture and substance

containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),

and 846, and three counts of distributing a mixture and substance containing a

detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.

§ 2. In 1993, a jury found Suarez guilty on all counts.

      Before Suarez’s sentence hearing, an updated presentence investigation

report found that Suarez was responsible for 1,669 kilograms of cocaine and

assigned him a base offense level of 36 pursuant to U.S.S.G. § 2D1.1 (Nov. 1988).

The PSR then applied a two-level enhancement for behavior resulting in serious

bodily injury, § 2D1.1(a)(2), and a two-level enhancement for possession of a

firearm during the commission of the offense, § 2D1.1(b)(1), resulting in a total

offense level of 40. With a criminal history category of I, and a total offense level

of 40, Suarez’s guideline range was 292 to 365 months imprisonment.

      During Suarez’s sentence hearing, on April 27, 2001, he raised an Apprendi

objection based on the PSR holding him responsible for more cocaine than was

admitted by him or found beyond a reasonable doubt by the jury. The district court

denied the objection, based on its interpretation that Apprendi only applied when



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the guideline range exceeded the statutory maximum. Suarez also objected to both

of the two-level enhancements. With the government’s consent, the court

sustained Suarez’s objection to the enhancement for serious bodily injury, bringing

Suarez’s total offense level down to 38. The court then sentenced Suarez to 235

months imprisonment, a sentence at the low end of the guideline range. Suarez

timely appealed, but he later filed a voluntary dismissal of the appeal, which was

granted by this Court on August 14, 2001.

      In May 2006, Suarez filed with the district court a pro se motion for

reduction of sentence, pursuant to 18 U.S.C. § 3582(c)(2). Suarez argued that the

district court attributed to him a larger amount of cocaine than was admitted by

him or found beyond a reasonable doubt by the jury, in violation of United States

Sentencing Guidelines Amendment 591, Apprendi v. New Jersey, 530 U.S. 466,

120 S. Ct. 2348 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531

(2004).

      The district court denied the motion, holding that Amendment 591 applies to

the court’s selection of the defendant’s offense guideline, and not to judicial

findings of actual conduct. The court also noted that the amendment did not

provide help to inmates trying to bypass the non-retroactivity of Apprendi and

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). Suarez appealed,



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arguing that: (1) the district court erred by denying his § 3582(c)(2) motion

because the court violated Amendment 591, Apprendi, and Blakely by

impermissibly calculating his offense level within U.S.S.G. § 2D1.1, based on

judicial findings regarding the amount of drugs attributed to him that were not

admitted by him or found beyond a reasonable doubt by the jury; and (2) because

of this error, he is entitled to be resentenced under Apprendi.1

       We review a district court’s decision not to reduce a defendant’s sentence

pursuant to § 3582(c)(2) only for abuse of discretion. United States v. Brown, 332

F.3d 1341, 1343 (11th Cir. 2003). Additionally, “[p]ro se pleadings are held to a

less stringent standard than pleadings drafted by attorneys and will, therefore, be

liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th

Cir. 1998).

       Generally, “the court may not modify a term of imprisonment once it has

been imposed.” 18 U.S.C. § 3582(c). Section 3582(c)(2) “does not grant to the

court jurisdiction to consider extraneous resentencing issues.” United States v.

Bravo, 203 F.3d 778, 782 (11th Cir. 2000). Instead, § 3582(c)(2) permits a district

court to modify an imposed term of imprisonment only “in the case of a defendant


       1
           Suarez also argues that United States v. Moreno, 421 F.3d 1217 (11th Cir. 2005), is no
longer good law in light of the Supreme Court’s decisions in Blakely and Booker. However, this
argument is without merit, given that Moreno was decided after Booker and its predecessors and,
in fact, discusses the implications of Booker. See Moreno, 421 F.3d at 1220–21.

                                                4
who has been sentenced to a term of imprisonment based on a sentencing range

that has subsequently been lowered by the Sentencing Commission pursuant to [its

Guidelines amendment power under] 28 U.S.C. § 994(o).” 18 U.S.C. § 3582(c)(2);

see also Moreno, 421 F.3d at 1220 (“Section 3582 only provides a district court

with the discretion to reduce a sentence following the lowering of a sentencing

range by the Sentencing Commission.”); United States v. Stossel, 348 F.3d 1320,

1322 n.2 (11th Cir. 2003) (stating that a § 3582(c)(2) motion is appropriate only

where the defendant argues that “his sentence should be modified based on a

subsequent sentencing guideline amendment.”).

      However, where a defendant has been sentenced pursuant to a sentencing

range that has subsequently been 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.” 18 U.S.C. § 3582(c)(2). The applicable policy statement in this

case is U.S.S.G. § 1B1.10(a), which provides:

      Where a defendant is serving a term of imprisonment, and the
      guideline range applicable to that defendant has subsequently been
      lowered as a result of an amendment to the Guidelines Manual listed
      in subsection (c) below, a reduction in the defendant’s term of
      imprisonment is authorized under 18 U.S.C. § 3582(c)(2). If none of
      the amendments listed in subsection (c) is applicable, a reduction in

                                        5
      the defendant’s term of imprisonment . . . is not consistent with this
      policy statement and thus is not authorized.

U.S.S.G. § 1B1.10(a).

      Amendment 591 modified U.S.S.G. § 1B1.1(a) by replacing the existing

language with the following, concerning the very first step in calculating the

appropriate guideline range: “Determine, pursuant to § 1B1.2 (Applicable

Guidelines), the offense guideline section from Chapter Two (Offense Conduct)

applicable to the offense of conviction. See 1B1.2.” U.S.S.G. App. C. The

amendment became effective on November 1, 2000, id., and it may be applied

retroactively by using a § 3582(c)(2) motion. See U.S.S.G. § 1B1.10(c); United

States v. Pelaez, 196 F.3d 1203, 1205 n.3 (11th Cir.1999).

      Suarez argues that the district court erred by denying his § 3582(c)(2)

motion because the court violated Amendment 591 by impermissibly calculating

his offense level within U.S.S.G. § 2D1.1, based on judicial findings regarding the

amount of drugs attributed to him that were not admitted by him or found beyond a

reasonable doubt by the jury. However, Amendment 591 was already in effect at

the time of Suarez’s April 2001 sentence hearing—Suarez admitted this fact in his

motion to the district court, as well as in his opening and reply briefs. Therefore,

Amendment 591 was not a “subsequent sentencing guideline amendment,”

cognizable in a § 3582(c)(2) motion. See 18 U.S.C. § 3582(c)(2); see also Stossel,

                                           6
348 F.3d at 1322 n.2. Instead, Suarez’s argument that the district court violated

Amendment 591 by improperly calculating his guideline range—an argument that

was available to him at the time of his sentencing—is an issue that he should have

addressed in his direct appeal to his sentence, which he voluntarily dismissed. See

United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005) (“[A]s was the

case before Booker, the district court must calculate the Guidelines range

accurately.”).

      Suarez’s argument that the district court erred by denying his motion

because the district court violated Apprendi and Blakely does not change this

result. Under the plain language of the statute, only changes to the guidelines

made by the Sentencing Commission after the defendant’s sentence hearing, not

Supreme Court decisions, can be used as a basis for a § 3582(c)(2) motion. See 18

U.S.C. § 3582(c)(2); see also Moreno, 421 F.3d at 1220 (“Booker is a Supreme

Court decision, not a retroactively applicable guideline amendment by the

Sentencing Commission. Therefore, Booker is inapplicable to § 3582(c)(2)

motions.”). Therefore, the district court correctly denied Suarez’s § 3582(c)(2)

motion.

      AFFIRMED.




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