                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-12104                ELEVENTH CIRCUIT
                                                             JULY 7, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                  D. C. Docket No. 94-03122-CR-3-LAC

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ANTHONY CURTIS,

                                                         Defendant-Appellant.


                       ________________________

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

                               (July 7, 2009)

Before BIRCH, HULL and ANDERSON, Circuit Judges.

PER CURIAM:
      Anthony Curtis, a federal prisoner convicted of crack cocaine offenses,

appeals the district court’s denial of his pro se 18 U.S.C. § 3582(c)(2) motion for

reduction of sentence based on Amendment 706 to U.S.S.G. § 2D1.1, which

lowered the base offense levels applicable to crack cocaine offenses. Curtis argues

that the district court should have applied Kimbrough v. United States, 552 U.S.

85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and United States v. Booker, 543 U.S.

220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to reduce his guideline range in

recognition of the disparate treatment between cocaine and crack cocaine. He also

argues that the district court erred in holding him accountable for six kilograms of

crack cocaine because it should have considered only the drugs that were

distributed after he joined the conspiracy.

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

legal authority under 18 U.S.C. § 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 who was sentenced to a term of imprisonment based on a

sentencing range that subsequently has been lowered by the Sentencing

Commission. 18 U.S.C. § 3582(c)(2). Any reduction, however, must be

“consistent with applicable policy statements issued by the Sentencing

Commission.” Id. A reduction of a term of imprisonment is not “consistent with



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applicable policy statements issued by the Sentencing Commission”—and is,

therefore, not authorized under § 3582(c)(2)—if the retroactive amendment does

not have the effect of lowering the defendant’s applicable guideline range.

U.S.S.G. § 1B1.10(a)(2)(B).

      Here, the district court properly denied § 3582 relief because Curtis’s

guideline range was not lowered as a result of Amendment 706 because he was

held accountable for more than 4.5 kilograms of crack cocaine, and

Amendment 706 only lowered base offense levels for quantities of crack cocaine

less than 4.5 kilograms. See James, 548 F.3d at 986 (holding that the defendant

was not entitled to a reduction in sentence because he had been held accountable

for more than 4.5 kilograms of crack cocaine, and Amendment 706 did not lower

his guideline range). Furthermore, Curtis’s argument that the court improperly

attributed more than 4.5 kilograms of crack cocaine to him is meritless because the

district court must keep all the original factual findings the same during § 3582

proceedings, and he was held accountable for 6 kilograms at sentencing. See

United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000) (holding that

proceedings under § 3582 do not constitute a de novo resentencing, and “all

original sentencing determinations remain unchanged”). Additionally, Curtis’s

arguments under Booker and Kimbrough fail because those cases are not



                                          3
retroactively applicable guideline amendments and cannot be a jurisdictional basis

for § 3582 relief. See United States v. Melvin, 556 F.3d 1190, 1192-93 (11th Cir.

2009), cert. denied, (U.S. May 18, 2009) (No. 08-8664) (holding that neither

Booker nor Kimbrough render a guideline range advisory in the context of a

§ 3582 proceeding, whether or not the guideline range is reduced by a sentencing

amendment); United States v. Moreno, 421 F.3d 1217, 1220-21 (11th Cir. 2005)

(holding that Booker did not provide a jurisdictional basis for § 3582 relief because

it was not a sentencing amendment). Therefore, the district court properly denied

the § 3582 motion, and we affirm.

      AFFIRMED.




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