           Case: 12-16272   Date Filed: 06/27/2013   Page: 1 of 5


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-16272
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:08-cr-20208-ASG-1



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                   versus

HECTOR FERNANDEZ-ARELLANO,

                                                         Defendant-Appellant.

                       ________________________

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

                              (June 27, 2013)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
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       Hector Fernandez-Arellano, proceeding pro se, appeals the district court’s

denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction, construed

from a pro se letter-motion Fernandez-Arellano filed with the district court

claiming errors in the calculation of his guideline range. 1 In the letter-motion,

Fernandez-Arellano asserted that the presentence investigation report held him

accountable for the wrong quantity of cocaine in determining his base offense

level. Fernandez-Arellano argued that his offense actually involved slightly less

than 15 kilograms of cocaine, and that as a result his base offense level should

have been 32 rather than the base level of 34 under which he was sentenced. The

district court denied the motion.

       Fernandez-Arellano subsequently moved for reconsideration, arguing that

his counsel was ineffective in representing him in the plea bargaining process.

Fernandez-Arellano also argued that the actual quantity of cocaine attributable to

him was 14.5 kilograms, and that the government increased the drug quantity at

sentencing without submitting facts or evidence to the court or a jury, in violation

of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and Apprendi v.

New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). Finally, Fernandez-Arellano

argued that the government violated his due process rights by relying on his intent


       1
          As the district court correctly noted, Fernandez-Arellano’s letter-motion would be time-
barred if we construed it as a 28 U.S.C. § 2255 motion, because judgment was entered in 2008
and the letter-motion was not filed until 2012. See 28 U.S.C. § 2255(f).
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to purchase 15 kilograms of cocaine, and that his plea agreement was invalid and

his sentence should be set aside because the government was dishonest and did not

act in good faith when it stipulated in the plea agreement that he was accountable

for 15 kilograms of cocaine. The district court denied the motion for

reconsideration.

      On appeal, Fernandez-Arellano argues that the district court incorrectly

sentenced him to 168 months’ imprisonment based on an inaccurate drug quantity

of 15 kilograms of cocaine, as the actual drug quantity involved in the offense was

14.5 kilograms. Fernandez-Arellano therefore argues that 14.5 kilograms should

be the drug quantity for which he is held accountable, and that he should be

resentenced based upon that drug quantity. Fernandez-Arellano also contends that

the district court failed to consider (1) his claims of ineffective assistance of

counsel in his guilty plea and sentencing proceedings; (2) whether the government

violated Blakely by increasing the quantity of cocaine for which he was responsible

without submitting any new evidence in court or to a jury; and (3) whether his due

process rights were violated when the court sentenced him based on inaccurate

information. Finally, Fernandez-Arellano argues that his plea agreement is invalid

because the government stipulated that he was accountable for 15 kilograms of

cocaine, but the government knew that the actual drug quantity was

14.5 kilograms.


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      We review for abuse of discretion a district court’s decision not to reduce a

sentence pursuant to § 3582(c)(2). United States v. Moreno, 421 F.3d 1217, 1219

(11th Cir. 2005) (per curiam). “[W]e review de novo the district court’s legal

conclusions regarding the scope of its authority under the Sentencing Guidelines.”

United States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008) (internal quotation

marks omitted). We may affirm the decision of the district court on any ground

supported by the record. Turner v. Warden Coleman FCI (Medium), 709 F.3d

1328, 1333 (11th Cir. 2013).

      18 U.S.C. § 3582(c)(2) creates a narrow exception to the general rule of

finality in sentencing determinations, granting the district court discretion to reduce

a sentence where the defendant’s term of imprisonment was based on a guideline

range “that has subsequently been lowered by the Sentencing Commission” and

where such a reduction is consistent with applicable policy statements of the

Sentencing Guidelines. “[O]nly amendments . . . listed under subsection (c) of

[U.S.S.G.] § 1B1.10, and that have the effect of lowering the sentencing range

upon which a sentence was based, may be considered for reduction of a sentence

under § 3582(c)(2).” United States v. Armstrong, 347 F.3d 905, 909 (11th Cir.

2003). Section 3582(c) does not grant the district court jurisdiction to consider

extraneous resentencing issues, such as a challenge to the constitutionality of a

sentence, which a claimant must instead present as a collateral attack on his


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sentence pursuant to § 2255. See United States v. Bravo, 203 F.3d 778, 782 (11th

Cir. 2000) (stating that an Eighth Amendment claim and other “extraneous

resentencing issues” must be raised in a § 2255 petition, and cannot be considered

in a § 3582(c)(2) motion).

      Fernandez-Arellano does not contend that his sentence should be reduced

based on a retroactive amendment to the Sentencing Guidelines listed in U.S.S.G.

§ 1B1.10(c), and the district court was therefore without jurisdiction to reduce his

sentence under § 3582(c)(2). See Armstrong, 347 F.3d at 909. Further, Fernandez-

Arellano’s Blakely challenge and claims regarding the validity of his plea,

ineffective assistance of counsel, and due process cannot be raised in a

§ 3582(c)(2) motion. They must instead be raised in a § 2255 motion, which

would now be time-barred in any event. See 28 U.S.C. § 2255(f) (providing that

such motions for collateral review must be filed within one year of the time the

conviction becomes final). The district court did not err in denying Fernandez-

Arellano’s § 3852(c) motion.

      AFFIRMED.




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