                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                 JULY 7, 2009
                                No. 09-11351                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                 D. C. Docket No. 06-00438-CR-6-KOB-PWG

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

WILLIAM EARL ERVIN, JR.,
a.k.a. Pick,
                                                             Defendant-Appellant.


                          ________________________

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

                                  (July 7, 2009)

Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.

PER CURIAM:

     William Earl Ervin, Jr., a federal prisoner proceeding pro se, appeals the
district court’s denial of his motion for a reduced sentence under 18 U.S.C. §

3582(c)(2), based on Amendments 706 and 709 to the Sentencing Guidelines. On

appeal, Ervin argues that the district court erred by finding that it lacked authority

to consider a variance under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738

(2005). Additionally, Ervin argues that the district court erred by concluding that

he was sentenced to the statutory mandatory minimum and was thus not entitled to

a reduction based on Amendment 706.

       We review the district court’s decision regarding whether to reduce a

sentence under § 3582(c)(2) for abuse of discretion and its conclusions regarding

the scope of its legal authority de novo. United States v. Williams, 549 F.3d 1337,

1338-39 (11th Cir. 2008) (internal quotation marks and citation omitted) (per

curiam). However, claims raised for the first time on appeal are reviewed for plain

error. United States v. Smith, 459 F.3d 1276, 1282-83 (11th Cir. 2006). “Under

the plain error standard, before an appellate court can correct an error not raised at

trial, there must be (1) error, (2) that is plain, and (3) that affects substantial

rights.” Id. at 1283. “If all three conditions are met, an appellate court may then

exercise its discretion to notice a forfeited error, but only if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

(internal quotation marks and citation omitted).



                                             2
      A district court may modify a term of imprisonment in the case of a

defendant who was sentenced to a term of imprisonment based on a Guidelines

range that has been subsequently lowered by the Sentencing Commission. 18

U.S.C. § 3582(c)(2). “[A] defendant whose original sentencing range was based

on something other than [United States Sentencing Guidelines] § 2D1.1,” such as

the application of a statutory mandatory minimum term of imprisonment, “is

precluded from receiving a sentence reduction [under Amendment 706], since the

amendment would not lower his applicable guidelines range.” Williams, 549 F.3d

at 1339.

      Upon review of the record and consideration of the parties’ briefs, we

discern reversible error. With respect to Count 5 of his indictment, Ervin plead

guilty to possession with intent to distribute five grams or more of cocaine base in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). At the time of his sentencing,

Ervin’s Guidelines range for Count 5 was 100 to 125 months of imprisonment; he

was sentenced to 125 months of imprisonment for that count.

      Amendment 706 has subsequently lowered Ervin’s Guidelines range with

respect to Count 5. The district court erred by concluding that it lacked jurisdiction

to lower Ervin’s sentence. The district court relied on the mistaken conclusion that

Ervin had been sentenced to 120 months of imprisonment, which is the statutory



                                          3
minimum sentence, when in fact Ervin was sentenced to 125 months of

imprisonment. Accordingly, we vacate and remand for consideration of whether

Ervin was entitled to a reduction under § 3582(c)(2) based on Amendment 706.1

       VACATED AND REMANDED.




       1
         Ervin raises a number of other arguments, none of which have merit. First, “Booker and
Kimbrough do not prohibit the limitations on a judge's discretion in reducing a sentence imposed
by § 3582(c)(2) and the applicable policy statement by the Sentencing Commission.” United
States v. Melvin, 556 F.3d 1190, 1192 (11th Cir. 2009) (per curiam), cert. denied, __ S. Ct. __,
2009 WL 357585 (2009). Second, to the extent that Ervin challenges the constitutionality of the
Sentencing Guidelines and 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), he did not raise these
arguments before the district court, and he points to no explicit statutory provision or direct
precedent in this Court or the Supreme Court showing error in this regard. See United States v.
Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003) (per curiam) (holding that an error is not
plain unless it is contrary to an explicit statutory provision or to an on-point precedent in this
Court or the Supreme Court). Accordingly, there was no plain error.


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