                                                                   [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                            FILED
                       ------------------------------------------- U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                    No. 05-12235                          April 7, 2006
                              Non-Argument Calendar                   THOMAS K. KAHN
                      --------------------------------------------         CLERK

                      D.C. Docket No. 95-00544-CR-2-1

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                        versus


VERNON BERCHFIELD ROPER,

                                                       Defendant-Appellant.


            ----------------------------------------------------------------
                 Appeal from the United States District Court
                     for the Northern District of Georgia
            ----------------------------------------------------------------

                                  (April 7, 2006)

Before EDMONDSON, Chief Judge, DUBINA and HULL, Circuit Judges.


PER CURIAM:
       Vernon Berchfield Roper appeals pro se the district court’s denial of his

motion to reduce sentence, 18 U.S.C. § 3582(c)(2). No reversible error has been

shown; we affirm.

       Roper was convicted by a jury in 1996 for two cocaine trafficking offenses

and for carrying a firearm during the commission of a drug trafficking crime, 18

U.S.C. § 924(c). The presentence investigation report (PSI) grouped the drug

counts and recommended a base offense level of 28.1 The PSI then

recommended--and the district court imposed--a three-level official victim

enhancement, U.S.S.G. § 3A1.2(b) (1995), because Roper had fired his weapon at

police officers while they attempted to arrest him.

       In 2004, Roper filed the instant § 3582(c)(2) motion based on the retroactive

application of Sentencing Guidelines Amendment 599. Roper argued that the

district court engaged in impermissible double counting in applying the

§ 3A1.2(b) enhancement because he was punished for the same conduct as a result

of his § 924(c) firearm conviction. The district court denied Roper’s motion,

determining that Amendment 599 did not apply to Roper, as Roper’s offense level




   1
     The PSI did not include the firearm count in the guideline calculation because that offense
required a mandatory 5-year consecutive sentence.

                                               2
was enhanced under the “official victim” provision of the Guidelines, not the

provision for possessing, brandishing, using, or discharging a firearm.

      We review a district court’s denial of a § 3582(c)(2) motion to reduce

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

(11th Cir. 2005). A district court abuses its discretion when in makes an error of

law. Id.

      Here, the district court committed no error in determining that Amendment

599 does not apply to Roper’s conduct. Amendment 599 amended the

commentary to § 2K2.4(b), which sets the statutory mandatory minimum sentence

as the guideline sentence for persons who have violated § 924(c). Amendment

599 provides that “[i]f a sentence under this guideline is imposed in conjunction

with a sentence for an underlying offense, do not apply any specific offense

characteristic for possession, brandishing, use, or discharge of an explosive or

firearm when determining the sentence for the underlying offense.” U.S.S.G. App.

C, Amdt. 599. The version of § 3A1.2(b) applicable at Roper’s sentencing

authorized a three-level enhancement if, during the offense, the defendant

assaulted a person that the defendant knew or had reason to believe was a law

enforcement officer in a manner creating a substantial risk of serious bodily injury.

U.S.S.G. § 3A1.2(b) (1995).

                                          3
        Thus, § 3A1.2(b) is not an enhancement based on a defendant’s possession

or use of a firearm. Roper’s sentences for the underlying drug offenses were

enhanced under § 3A1.2 because he shot at, and thus assaulted, a police officer

during the commission of the offenses. Roper’s sentences were not enhanced

because he possessed or brandished a firearm. Amendment 599 does not alter the

applicable guideline range in this case and provides no basis for reducing Roper’s

sentence.

        Roper also argues that the district court’s fact determinations in assessing

the § 3A1.2 enhancement violated his Sixth Amendment right to a jury trial.2 To

the extent that Roper is contending that his sentence runs afoul of United States v.

Booker, 125 S.Ct. 738 (2005), and that Booker authorizes a basis for granting him

relief under § 3582(c)(2), we recently have rejected this claim. See United States

v. Moreno, 421 F.3d 1217, 1220-21 (11th Cir. 2005) (writing that Booker does not

apply to § 3582(c)(2) motions because it is a Supreme Court decision, not a

guideline amendment made retroactively applicable by the Sentencing

Commission). And to the extent that Roper challenges the constitutionality of his



    2
     On the same day that the district court denied Roper’s § 3582(c)(2) motion, Roper filed a
supplemental motion alleging that the § 3A1.2(b) enhancement constituted double counting and was
unconstitutional in the light of Blakely v. Washington, 124 S.Ct. 2531 (2004), and United States v.
Booker, 125 S.Ct. 738 (2005). The district court did not address the supplemental motion.

                                                4
sentence, § 3582(c)(2) is not the proper vehicle for such an attack. See 18 U.S.C.

§ 3582(c)(2); 28 U.S.C. § 2255.

      AFFIRMED.




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