                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                 FILED
                                                          U.S. COURT OF APPEALS
                                No. 08-17038                ELEVENTH CIRCUIT
                                                                JUNE 16, 2009
                            Non-Argument Calendar
                                                             THOMAS K. KAHN
                          ________________________
                                                                  CLERK

                   D. C. Docket No. 04-00006-CR-1-MMP-AK

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                     versus

STEPHEN DUNLAP,
a.k.a. Superintendent Duke,

                                                            Defendant-Appellant.


                          ________________________

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

                                 (June 16, 2009)

Before BLACK, BARKETT and FAY, Circuit Judges.

PER CURIAM:
      Stephen Dunlap, who pled guilty to a crack cocaine offense, appeals pro se

the district court’s denial of his motion for reduction of sentence, pursuant to 18

U.S.C. § 3582(c)(2) and based on Amendment 706, which reduced the base offense

levels applicable to crack cocaine offenses that involved less than 4.5 kilograms of

crack cocaine. The district court denied the motion because Dunlap was held

responsible for 22.25 kilograms of crack cocaine, such that Amendment 706 did

not affect his guideline imprisonment range. Dunlap now argues that the

sentencing court did not specify the amount of crack cocaine for which he was

responsible and failed to resolve his objection to the drug amount used in the

presentence investigation report (“PSI”). Dunlap also argues that the sentencing

court could not hold him accountable for more than 4.5 kilograms of crack cocaine

because the plea agreement specified that he was responsible for only “50 grams or

more of crack cocaine.” For the reasons set forth below, we affirm.

      “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 reduce the sentence “of a

defendant who has been sentenced to a term of imprisonment based on a

sentencing range that has subsequently been lowered by the Sentencing

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



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“consistent with applicable policy statements issued by the Sentencing

Commission.” Id. The applicable policy statements provide that “a reduction in

the defendant’s term of imprisonment is not authorized under 18 U.S.C. 3582(c)(2)

and is not consistent with this policy statement if . . . [a retroactive amendment] is

applicable to the defendant but the amendment does not have the effect of lowering

the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10, comment.

(n.1(A)).

      The district court properly denied the motion. See James, 548 F.3d at 984.

Dunlap was ineligible for a sentence reduction, as Amendment 706 did not lower

his guideline imprisonment range because he was held accountable for more than

4.5 kilograms of crack cocaine and Amendment 706 only lowered the base offense

levels for quantities of crack cocaine less than 4.5 kilograms. See id. 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). Dunlap’s argument that the

district court failed to resolve his objection to the PSI drug-amount finding is

without merit, because the record demonstrates that he withdrew that objection at

sentencing. Dunlap’s argument, that the district court failed to make a finding as to

drug amount, also is without merit. The record demonstrates that the district court



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found that the PSI was “complete, true and accurate” before imposing sentence

and, therefore, adopted the PSI drug-amount finding of 22.25 kilograms. Dunlap’s

argument, that the district court could not hold him accountable for more than 4.5

kilograms of crack cocaine given the drug-amount stipulations of the plea

agreement, likewise is facially without merit. Dunlap acknowledges that the plea

agreement stipulated that he was responsible for 50 grams “or more” of crack

cocaine. Accordingly, we affirm.

      AFFIRMED.




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