                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            FEB 03, 2009
                             No. 08-14528                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 06-80070-CR-DMM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

RONALD GAMBLE,

                                                         Defendant-Appellant.


                       ________________________

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

                            (February 3, 2009)

Before TJOFLAT, DUBINA and FAY, Circuit Judges.

PER CURIAM:
      Ronald Gamble appeals the district court’s denial of his motion for

reduction of sentence, pursuant to 18 U.S.C. § 3582(c)(2), based on Amendment

706 to the Sentencing Guidelines. For the reasons set forth below, we affirm.

                                          I.

      Gamble pled guilty to possession with intent to distribute five or more grams

of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). The government filed a

substantial assistance motion, pursuant to § 5K1.1. The district court set Gamble’s

base offense level at 30, pursuant to U.S.S.G. § 2D1.1(c), and applied a 3-level

reduction, pursuant to U.S.S.G. § 3E1.1. The district court set Gamble’s criminal

history category at IV. The district court determined that, with a total offense level

of 27 and a criminal history category of IV, Gamble’s guideline imprisonment

range was 100 to 125 months. The district court acknowledged, however, that

Jones had a prior drug conviction, such that his statutory mandatory range of

imprisonment was ten years to life, pursuant o 21 U.S.C. § 841(b)(1)(B). The

district court concluded, therefore, that Gamble’s guideline imprisonment range

was 120 and 125 months’ imprisonment, pursuant to U.S.S.G. § 5G1.1(c)(2). The

district court then granted the government’s § 5K1.1 downward departure motion

and sentenced Gamble to 60 months’ imprisonment. On March 31, 2008, Gamble

submitted the instant § 3582(c)(2) motion. The district court denied Gamble’s



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motion for reduction of sentence, reasoning that:

      [Gamble] was subject to a 10 year minimum mandatory sentence. As
      such, [Gamble] is not entitled to the 2 level reduction. Amendment
      706 does not apply in this case. Though [Gamble] received a sentence
      reduction pursuant to [§ 5K1.1], such reduction does not have the
      effect of altering the original guideline calculation.

                                         II.

      We review de novo “the district court’s legal conclusions regarding the

scope of its authority under the [Guidelines].” United States v. Moore, 541 F.3d

1323, 1326 (11th Cir. 2008). Pursuant to § 3582(c)(2), a district court may reduce

an already-incarcerated defendant’s sentence if the sentence was determined using

a guideline imprisonment range that retroactive amendments to the Guidelines

have reduced. 18 U.S.C. § 3582(c).

      The commentary to the Guidelines instructs that a defendant is not eligible

for a § 3582(c)(2) reduction “if the amendment [in question] 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.)” U.S.S.G. § 1B1.10, comment. (n.1(A)). In a

recent published case, United States v. Williams, No. 08-12475, slip op. at 452-55

(11th Cir. Nov. 26, 2008), we held that this principle applied even where the

district court departed downward from a statutory mandatory minium term of



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imprisonment pursuant to a § 5K1.1 motion. We reasoned that, (1) given the

statutory mandatory minimum term of imprisonment, the “district court’s point of

departure would not shift as a result of [Amendment 706’s] lowering of the crack

offense levels”; and (2) “the decreased sentence [imposed pursuant to the § 5K1.1

motion] should [not] be read to somehow eliminate the otherwise applicable

mandatory minimum.” Id. at 454-55. We concluded that “[b]ecause [the

defendant] was subject to a statutory mandatory minimum that replaced his

original sentencing guideline range, he was not sentenced according to the base

offense level in § 2D1.1, even taking into account the § 5K1.1 downward

departure.” Id. at 455-56.

                                        III.

      The district court did not err in denying Gamble’s § 3582(c)(2) motion. See

Moore, 541 F.3d at 1326. Gamble was sentenced pursuant to a statutory

mandatory minimum term of imprisonment, and departure therefrom pursuant to a

substantial assistance motion, rather than a guideline imprisonment range that

ultimately was altered under Amendment 706. See U.S.S.G. § 1B1.10, comment.

(n.1(A)); Williams, No. 08-12475, slip op. at 452-55. Accordingly, we affirm.

      AFFIRMED.




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