                                               [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS
                                                      FILED
                  FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                   ________________________  ELEVENTH CIRCUIT
                                                  JUNE 8, 2009
                         No. 08-15752           THOMAS K. KAHN
                     Non-Argument Calendar          CLERK
                   ________________________

            D. C. Docket No. 90-00021-CR-FTM-29-DNF

UNITED STATES OF AMERICA,


                                                 Plaintiff-Appellee,

                            versus

WILFRED RIVERA,

                                               Defendant-Appellant.


                   ________________________

                         No. 08-15753
                     Non-Argument Calendar
                   ________________________

            D. C. Docket No. 01-00033-CR-FTM-29-DNF

UNITED STATES OF AMERICA,


                                                 Plaintiff-Appellee,
                                      versus

WILFRED RIVERA,

                                                              Defendant-Appellant.


                           ________________________

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

                                   (June 8, 2009)

Before TJOFLAT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

      In these consolidated appeals, Wilfred Rivera, proceeding pro se, challenges

the district court’s denial of his motions for a reduced sentence, which were filed

pursuant to 18 U.S.C. § 3582(c)(2), and the denial of his motions for

reconsideration. Rivera’s § 3582(c)(2) motions were based on Amendment 706 to

the Sentencing Guidelines, which reduced the base offense levels applicable to

cocaine base (“crack”) offenses. In 1990, Rivera pled guilty to distribution of 50

grams or more of crack, in violation of 21 U.S.C. § 841(a)(1). He currently is

serving a sentence of 24 months for violating the terms of his supervised release in

that case. Rivera also is currently serving a consecutive prison sentence of 108



                                          2
months for conspiracy to possess with intent to distribute five kilograms or more

of cocaine, in violation of 21 U.S.C. § 846. While he filed identical § 3582

motions and motions for reconsideration in both cocaine cases, Rivera has

abandoned his claim that the district court erred in denying his motions in the

powder cocaine case, because he failed to argue the denial of those motions in his

appellate brief. See Irwin v. Hawk, 40 F.3d 347, 347 n.1 (11th Cir. 1994).

      Appealing the district court’s rulings in the crack cocaine case, Rivera

argues that the district court can grant a § 3582 sentence reduction when a

defendant is sentenced to a term of imprisonment upon the revocation of his

supervised release. Rivera contends that the district court should have followed

the teaching of Kimbrough v. United States, 552 U.S. __, 128 S.Ct. 558, 169

L.Ed.2d 481 (2007), and Gall v. United States, 552 U.S. ___, 128 S.Ct. 586, 169

L.Ed.2d 445 (2007), in exercising its discretion in sentencing him under the

sentencing factors of 18 U.S.C. § 3553(a).

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

legal authority under . . . § 3582(c)(2).” United States v. James, 548 F.3d 983, 984

(11th Cir. 2008). A district court may modify a term of imprisonment in the case

of a defendant sentenced to a term of imprisonment based on a sentence range that

subsequently been lowered by the Sentencing Commission. 18 U.S.C. §

                                         3
3582(c)(2). Any such reduction must also be consistent with the Commission’s

applicable policy statements, which provide that a sentence reduction must relate

to the defendant’s “term of imprisonment” and is not permitted if none of the

retroactive amendments apply to the defendant’s case. U.S.S.G. §§ 1B1.10(a)(1),

(a)(2)(A).

      The commentary to U.S.S.G. § 1B1.10 states, “Only a term of imprisonment

imposed as part of the original sentence is authorized to be reduced under this

section. This section does not authorize a reduction in the term of imprisonment

imposed upon revocation of supervised release.” U.S.S.G. § 1B1.10, comment.

(n.4(A)). The commentary to the Guidelines thus explicitly provides that a

defendant serving a term imposed upon revocation of supervised release is not

eligible for § 3582(c)(2) relief. Id.; see also United States v. Melvin, 556 F.3d

1190 (11th Cir. 2009), petition for cert. filed, (U.S. Feb. 10, 2009) (No. 08-8664)

(holding that “a district court is bound by the limitations on its discretion imposed

by § 3582(c)(2) and the applicable policy statements by the Sentencing

Commission”).

      Furthermore, Chapter 7 of the Sentencing Guidelines sets out the sentence

ranges applicable to defendants whose terms of supervised released have been

revoked. See U.S.S.G. § 7B1.4(a). Thus, the court, following the revocation of

                                          4
supervised release, does not sentence the defendant under the crack cocaine

provisions of U.S.S.G. § 2D1.1, and Amendment 706 has no effect on the sentence

ranges set out in § 7B1.4(a). See U.S.S.G. App. C, Amend. 706 (amending the

Drug Quantity Table in § 2D1.1(c)). “Where a retroactively applicable guideline

amendment . . . does not alter the sentencing range upon which [a defendant’s]

sentence was based, § 3582(c)(2) does not authorize a reduction in sentence.”

United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008), cert. denied,

McFadden v. United States, 129 S.Ct. 965 (2009), and cert. denied, (U.S. Mar. 9,

2009) (No. 08-8554).

      Here, the district court correctly determined that Rivera was not eligible for

a sentence reduction based on Amendment 706 as the sentence imposed following

the revocation of supervised release was based on a sentence range set out in

§ 7B1.4, not § 2D1.1.1

      AFFIRMED.




      1
          Rivera’s citation of Kimbrough and Booker are inapposite. See Melvin, 556 F.3d at
1192-93.
                                             5
