                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                        SEPTEMBER 10, 2009
                            No. 08-15477                 THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________

                    D. C. Docket No. 91-00176-CR-4

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

EDDIE GREGORY BATTEN,

                                                        Defendant-Appellant.


                      ________________________

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

                          (September 10, 2009)

Before EDMONDSON, MARCUS and FAY, Circuit Judges.
PER CURIAM:

       Eddie Gregory Batten, a pro se federal prisoner convicted of a crack cocaine

offense, appeals the denial of his motion for a sentence reduction, 18 U.S.C. §

3582(c)(2), based on Amendment 706 to the Sentencing Guidelines.1 No reversible

error has been shown; we affirm.

       Batten originally received a base offense level of 40 based on the 5

kilograms of crack cocaine attributable to him. With no other sentencing

adjustments and a criminal history category of II, Batten’s guidelines range was

324 to 405 months’ imprisonment. The district court sentenced Batten to 405

months in addition to a consecutive 60-month sentence for a firearm count.

       In his section 3582(c)(2) motion, Batten sought to have his base offense

level reduced to 38 and to have his sentence reduced pursuant to Amendment 706.

But the district court concluded that Amendment 706 did not apply to Batten

because his offense involved more than 4.5 kilograms of crack cocaine and denied

the section 3582(c)(2) motion.

       On appeal, Batten argues that Amendment 706 allowed the district court to

lower his base offense level from 40 to 38 because 38 is now the highest base



       1
        Amendment 706 -- which became retroactive on 3 March 2008, U.S.S.G. App. C,
Amend. 713 (Supp. 1 May 2008) -- reduced by two the base offense levels in crack cocaine
sentences calculated pursuant to the drug quantity table, U.S.S.G. § 2D1.1(c).

                                              2
offense level and corresponds to the amount of drugs attributable to him. We

review de novo the district court’s legal conclusions and questions of statutory

interpretation in a section 3582(c)(2) proceeding. United States v. Moore, 541

F.3d 1323, 1326 (11th Cir. 2008), cert. denied, McFadden v. United States, 129

S.Ct. 965 (2009), and cert. denied, 129 S.Ct. 1601 (2009).

      When a sentencing guideline is amended and given retroactive effect, the

district court, “after considering the factors set forth in [18 U.S.C. §] 3553(a) to the

extent that they are applicable,” may reduce a previous sentence under the

amendment “if such a reduction is consistent with applicable policy statements

issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). A reduction of a

term of imprisonment is not “consistent with applicable policy statements issued

by the Sentencing Commission” -- and is, therefore, unauthorized under section

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).

      After Amendment 706, the maximum base offense level of 38 in drug cases

corresponds to 4.5 kilograms or more of crack cocaine instead of 1.5 kilograms or

more. The applicability of Amendment 706 is driven by drug quantity; the

amendment was designed to lower the base offense levels only of those defendants

attributed with less than 4.5 kilograms of crack cocaine. See United States v.



                                            3
Jones, 548 F.3d 1366, 1369 (11th Cir. 2008), cert. denied, 129 S.Ct. 1657 (2009)

(explaining that “a base offense level of 38 still applies to defendants responsible

for 4.5 kilograms or more” of crack cocaine). So, because Batten was held

accountable for 5 kilograms of crack cocaine, Amendment 706 was inapplicable to

him, and the district court committed no error in denying the section 3582(c)(2)

motion.

       Batten takes issue with his base offense level of 40, which has been

abolished from the drug quantity table since his 1992 sentencing. But Amendment

505 -- not Amendment 706 -- reduced the top-end base offense level for drug

crimes from 42 to 38. U.S.S.G. App. C, Amend. 505. Amendment 706 had no

affect on the base offense level cap of 38 established by Amendment 505. Thus,

Amendment 505 gave Batten the opportunity to have his base offense level

reduced to the current cap of 38. In this section 3582(c)(2) proceeding, Batten

explicitly sought relief under Amendment 706. As noted, Amendment 706 affords

Batten no relief because of the drug quantity attributable to him.2

       AFFIRMED.




       2
          And the record indicates that the district court previously denied Batten relief under
Amendment 505 over a decade ago. See United States v. Escobar-Urrego, 110 F.3d 1556, 1560
(11th Cir. 1997) (explaining that the law-of-the-case doctrine prevented a defendant from
relitigating a sentencing issue already decided at a prior stage in the case).

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