                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-13084                ELEVENTH CIRCUIT
                                                           JANUARY 27, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

               D. C. Docket No. 91-00146-CR-ORL-19-JGG

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

BRIAN CARSON,

                                                         Defendant-Appellant.


                       ________________________

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

                            (January 27, 2009)

Before DUBINA, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
      Appellant Brian Carson, a federal prisoner, appeals the denial of his pro se

motion filed pursuant to 18 U.S.C. § 3582(c)(2) to reduce his 292-month sentence

for conspiracy to possess with intent to distribute in excess of 50 grams of crack

cocaine and possession with intent to distribute approximately 300 grams of crack

cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A)(iii). On appeal,

Carson argues that the district court erred in ruling that the guidelines are

mandatory in § 3582 proceedings because after Booker1 and Kimbrough,2 all

guidelines, including the Commission’s policy statements, are advisory. Carson

also asserts that district courts are free to reject the Commission’s policy statement

under U.S.S.G. § 1B1.10 because it is not tied to empirical data and is inconsistent

with (1) the § 3553(a)(2) sentencing purposes, and (2) the rationale behind

Amendment 706.

      “In a proceeding to modify a sentence under 18 U.S.C. § 3582(c)(2), we

review de novo the district court’s legal conclusions regarding the scope of its

authority under the Sentencing Guidelines.” United States v. White, 305 F.3d

1264, 1267 (11th Cir. 2002).

      Under § 3582(c)(2), a district court has discretion to reduce the term of



      1
          United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
      2
          Kimbrough v. United States, 552 U.S. __, 128 S. Ct. 558, 169 L. Ed. 2d 481 (2007).

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imprisonment of an already incarcerated defendant if that defendant “has been

sentenced to a term of imprisonment based on a sentencing range that has

subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C.

§ 994(o).” 18 U.S.C. § 3582(c)(2). A reduction in the term of imprisonment is not

consistent with the Guidelines policy statement, and therefore not authorized by

§ 3582(c)(2), if “[a]n amendment listed in subsection (c) does not have the effect

of lowering the defendant’s applicable guideline range.” U.S.S.G.

§ 1B1.10(a)(2)(B).

      Amendment 706, which is listed in U.S.S.G. § 1B1.10(c), was made

retroactive by Amendment 713. See U.S.S.G. App. C, Amend. 713; U.S.S.G.

§ 1B1.10(c). Amendment 706 reduced offense levels in certain crack cocaine

cases by two levels, as reflected in the drug quantity table in U.S.S.G. § 2D1.1(c).

See U.S.S.G. App. C, Amend. 706.

      We have held that a defendant who was accountable for 4.5 kilograms or

more of crack cocaine was not eligible for a sentence reduction under § 3582(c)(2)

and Amendment 706 because his base offense level remained at 38, and his

guideline range was not reduced. United States v. Jones, No. 08-13298, slip op. at

443-44 (11th Cir. Nov. 19, 2008).

      In Booker, the Supreme Court held that the Sentencing Guidelines are



                                          3
advisory. Booker, 543 U.S. at 258-260, 125 S. Ct. at 764-65. In Kimbrough, the

Court held that a district court could consider the crack cocaine/powder cocaine

disparity in considering the § 3553(a) factors at sentencing. Kimbrough, 552 U.S.

at __, 128 S. Ct. at 575.

      Because Booker is not a retroactively applicable guideline amendment, it is

inapplicable to § 3582(c)(2) motions. United States v. Moreno, 421 F.3d 1217,

1220 (11th Cir. 2005). Accordingly, “neither § 3582(c)(2) nor Booker provide[] a

jurisdictional basis to reduce [a defendant’s] sentence based on his post-sentencing

rehabilitative conduct.” Id. at 1221 (reviewing the Booker argument for plain

error). Moreover, in Jones we explicitly rejected an argument, from a defendant

who was ineligible for the reduction because of the amount of cocaine, that the

district court nevertheless had the authority to reduce his sentence under Booker.

Jones, No. 08-13298, slip op. at 443-44.

      Because the record demonstrates that Carson was held responsible at the

original sentencing for over 4.5 kilograms of crack cocaine, Amendment 706 did

not reduce his guideline range, and he was not eligible for a sentence reduction.

Additionally, because Booker and Kimbrough do not provide an independent basis

for reconsideration of a defendant’s sentence, we conclude that the district court

did not err in rejecting Carson’s argument that he was still eligible for a



                                           4
§ 3582(c)(2) sentence reduction. Consequently, the district court did not err by

denying Carson’s § 3582(c)(2) motion. Accordingly, we affirm the district court’s

order denying the motion to reduce Carson’s sentence.

      AFFIRMED.




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