                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            DEC 3, 2008
                             No. 08-11367                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                  D. C. Docket No. 05-00045-CR-WLS-1

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ALVIN BATEMAN, JR.,

                                                         Defendant-Appellant.


                       ________________________

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

                           (December 3, 2008)

Before BLACK, BARKETT and FAY, Circuit Judges.

PER CURIAM:
      Alvin Bateman, Jr., appeals the district court’s denial of his motion for

modification of sentence, pursuant to 18 U.S.C. § 3582(c)(2). For the reasons set

forth below, we affirm.

                                          I.

      Bateman pled guilty to possession with intent to distribute five grams or

more of crack cocaine, and the district court imposed the statutory mandatory

minimum of 60 months’ imprisonment, pursuant to 21 U.S.C. §§ 841(a)(1) and

(b)(1)(B)(iii). Bateman submitted a pro se motion for modification of sentence,

arguing that Amendments 706 and 711 to the Sentencing Guidelines altered the

calculation of his guideline imprisonment range for his crack-cocaine offense. The

district court denied the motion, reasoning that Amendment706 did not merit a

reduction to Bateman’s sentence because he was sentenced to the statutory

mandatory minimum.

      On appeal, with the assistance of counsel, Bateman argues that the district

court plainly erred in denying his motion because his sentence was unconstitutional

for violating his due process and equal protection rights. Bateman asserts that the

crack/powder ratio, and associated statutory mandatory minimums, are not related

to a legitimate state interest, as the Supreme Court recently recognized in

Kimbrough v. United States, 552 U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).



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Bateman also argues that the crack/powder ratio, and associated statutory

mandatory minimums, disproportionately affect African-Americans like himself.

                                               II.

       We review a district court’s refusal to reduce a sentence, pursuant to

§ 3582(c)(2), for an abuse of discretion. United States v. Vautier, 144 F.3d 756,

759 n.3 (11th Cir. 1998).1 However, when a defendant fails to raise an error in the

district court, we review for plain error only. United States v. Moreno, 421 F.3d

1217, 1220 (11th Cir. 2005). Under plain error review, we may take action if there

is (1) error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously

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

       Under § 3582(c)(2), a district court may reduce an already-incarcerated

defendant’s sentence if the defendant’s sentence was determined using a guideline

imprisonment range that subsequent retroactive amendments to the Guidelines

have reduced and if the district court has considered the applicable factors set forth

in 18 U.S.C. § 3553(a) and determined that a reduction would be consistent with

the policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c);

       1
         As a preliminary matter, the district court had, and we have, subject matter jurisdiction
over Bateman’s motion for modification of sentence. Although Bateman filed the motion before
Amendment 706 became retroactively applicable on March 3, 2008, the district court ruled on
the motion after this date. See United States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008)
(holding that the district court and this Court had subject matter jurisdiction over the defendant’s
motion for modification of sentence based on Amendment 706, even though the defendant filed
the motion before March 3, 2008, because the district court ruled on the motion after that date).

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United States v. Bravo, 203 F.3d 778, 780-81 (11th Cir. 2000). The commentary

to U.S.S.G. § 1B1.10 instructs that a reduction under § 3582(c)(2) is not authorized

when “an amendment . . . is applicable to the defendant but the amendment 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)); see also Moore, 541 F.3d at 1328 (holding that, while Amendment 706

was applicable to the defendants in question because it reduced their base offense

levels, a reduction was not authorized because the amendment did not have the

effect of lowering their applicable guideline ranges because of the application of

the career offender guideline). In Kimbrough, the Supreme Court held that, in

determining to what extent to vary from the guidelines based on a disagreement

with the crack/powder ratio, the district court remains “constrained by the

mandatory minimums Congress prescribed.” 552 U.S. at ___, 128 S.Ct. at 574.

      We have held that § 3582(c)(2) does not permit the district to consider the

defendant’s sentence de novo and that “[a]ll original sentencing determinations

[must] remain unchanged with the sole exception of the guideline range that has

been amended since the original sentencing.” Moreno, 421 F.3d at 1220 (quotation

omitted). Indeed, we have held that constitutional challenges to a defendant’s



                                           4
sentence are the sort of “extraneous” issues that are not cognizable under

§ 3582(c)(2) and instead must be pursued by way of habeas petitions. Bravo, 203

F.3d at 781-82 (upholding a district court’s finding that it had no jurisdiction in a

§ 3582(c)(2) proceeding to consider the defendant’s claim that his sentence

constituted cruel and unusual punishment).

                                          III.

      The district court did not err, plain or otherwise, in denying Bateman’s

motion. See Vautier, 144 F.3d at 759 n.3; Moreno, 421 F.3d at 1220. When

confronted with a motion for modification of sentence, the district court only may

analyze whether the sentence was determined using a guideline imprisonment

range that a subsequent retroactive amendment has reduced. See 18 U.S.C.

§ 3582(c); Bravo, 203 F.3d at 780-81. Bateman does not argue on appeal that the

district court erred in conducting this analysis, and the record otherwise does not

reveal such an error. See U.S.S.G. § 1B1.10, comment. (n.1(A)); Moore, 541 F.3d

at 1328. The district court is not permitted to analyze whether the sentence was

unconstitutional. See Moreno, 421 F.3d at 1220; Bravo, 203 F.3d at 781-82.

Accordingly, the district court did not err in failing to do so, and we affirm.

      AFFIRMED.




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