                                                              [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                           FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                             ________________________ ELEVENTH CIRCUIT
                                                                    MAR 9, 2010
                                   No. 09-10038                     JOHN LEY
                               Non-Argument Calendar                  CLERK
                             ________________________

                         D. C. Docket No. 95-00605-CR-PAS

UNITED STATES OF AMERICA,


                                                                    Plaintiff-Appellee,

                                           versus

JOSE MANUEL SALDANA,
a.k.a. Popeye, a.k.a. John Gotti,
a.k.a. Jose Soto, a.k.a. Pye, a.k.a.
Emanuel Santa,
                                                              Defendant-Appellant.


                             ________________________

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

                                       (March 9, 2010)

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:
      Jose Manuel Saldana, a federal prisoner, was convicted of (1) conspiring to

possess with the intent to distribute a detectable amount of crack cocaine, in

violation of 21 U.S.C. § 846, (2) using firearms during and in relation to a drug

trafficking crime, in violation of 18 U.S.C. § 924(c), and (3) possessing with the

intent to distribute a detectable amount of crack cocaine, in violation of 21 U.S.C.

§ 841(a)(1). He appeals the district court’s denial of his pro se 18 U.S.C. §

3582(c)(2) motion for reduction of sentence.

                                           I.

      We review a district court’s denial of a motion for a sentence reduction

pursuant to § 3582(c)(2) for abuse of discretion. United States v. Moreno, 421

F.3d 1217, 1219 (11th Cir. 2005). “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. James, 548 F.3d 983, 984 (11th Cir. 2008).

      Under § 3582(c)(2), a district court may reduce the term of imprisonment of

an already incarcerated defendant who was sentenced pursuant to a guideline range

“that has subsequently been lowered by the Sentencing Commission.” See 18

U.S.C. § 3582(c)(2). A § 3582(c)(2) proceeding “does not constitute a de novo

resentencing.” Moreno, 421 F.3d at 1220. In considering a § 3582(c)(2) motion, a

district court must engage in a two-part analysis. “First, the district court must



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recalculate the defendant’s guideline sentencing range based upon the relevant

amendment to the Sentencing Guidelines; none of the other guideline

determinations made during the original sentencing may be reconsidered or

altered.” United States v. Smith, 568 F.3d 923, 927 (11th Cir. 2009). Second, the

district court must decide whether in its discretion, based on the 3553(a) factors,

“to impose the newly calculated sentence under the amended guidelines or retain

the original sentence.” United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000).

This requirement, however, “is triggered only by an amendment . . . that lowers the

applicable guideline range.” See U.S.S.G. § 1B1.10, comment. (n.1(A)).

      “[A] reduction under § 3582(c)(2) is not authorized where ‘the

amendment . . . is applicable to the defendant but the 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).’ ” United States v. Moore, 541 F.3d 1323,

1327–28 (11th Cir. 2008) (quoting U.S.S.G. § 1B1.10, comment. (n.1(A))

(emphasis omitted). This is true because, to the extent that the mandatory

minimum is greater than a portion of the guideline range, the mandatory minimum

replaces its lower boundary, and where the mandatory minimum “is greater than

the maximum of the applicable guideline range,” it becomes the guideline



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sentence. See United States v. Pope, 58 F.3d 1567, 1568 n.1 (11th Cir. 1995);

U.S.S.G. § 5G1.1(b), (c)(2); see also United States v. Williams, 549 F.3d 1337,

1341–42 (11th Cir. 2008) (holding that a defendant sentenced to the statutory

minimum was not eligible for a sentence reduction under Amendment 706).

      Saldana contends that he was entitled to a sentence reduction based on

Amendments 599 and 706 to the Sentencing Guidelines. “Amendment 599 was

enacted in order to clarify under what circumstances a weapons enhancement may

properly be applied to an underlying offense when the defendant has also been

convicted for the use or possession of a firearm pursuant to 18 U.S.C. § 924(c) . . .

.” United States v. Pringle, 350 F.3d 1172, 1179 (11th Cir. 2003). Amendment

706 reduced by two levels the base offense level for crack cocaine sentences

calculated pursuant to U.S.S.G. § 2D1.1(c). See Smith, 568 F.3d at 926. The

district court was not authorized to reduce Saldana’s sentence based on those

amendments. Saldana had two prior felony drug convictions, and thus he was

subject to a statutory mandatory minimum sentence of life imprisonment. See 21

U.S.C. §§ 841(b)(1)(A), 851. Because his sentence was not based on the

sentencing guidelines, he was not eligible for a § 3582(c)(2) sentence reduction.

See Moore, 541 F.3d at 1327–28; Williams, 549 F.3d at 1341–42.

      Saldana also contends that the district court should have reduced his



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sentence based on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000),

and because the government failed to satisfy the notice requirements of 21 U.S.C. §

851. We will not address those arguments because a § 3582(c)(2) proceeding does

not constitute a de novo resentencing. See Bravo, 203 F.3d at 782 (concluding that

a district court may not consider extraneous resentencing issues, including

constitutional claims, during § 3582(c)(2) proceedings). The district court did not

abuse its discretion by denying Saldana’s § 3582(c)(2) motion.

      AFFIRMED.




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