                                                     [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT           FILED
                       ________________________ U.S. COURT OF APPEALS
                                                    ELEVENTH CIRCUIT
                              No. 10-10237             JULY 22, 2010
                          Non-Argument Calendar         JOHN LEY
                                                          CLERK
                        ________________________

                   D.C. Docket No. 2:07-cr-14083-KMM-1

USA,


                                                         Plaintiff - Appellee,

       versus

JESSE LEE SWANSON,
a.k.a. Jesse Lee Harvey,
a.k.a. Fred P. McKinnon,
a.k.a. Kevirent Brundage,
a.k.a. Jonathan Small,
a.k.a. Jesse Harvey,
a.k.a. Travis Cole,
a.k.a. Fred Lee McKinnon,
a.k.a. Jayfon Lee Mackey,


                                                    Defendant - Appellant.
                            ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________
                                  (July 22, 2010)

Before ANDERSON, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

      Jesse Lee Swanson, proceeding pro se, appeals the district court’s denial of

his motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2). Swanson

was sentenced to 327 months imprisonment after he pled guilty to one count of

conspiracy to possess with intent to distribute five grams or more of crack cocaine,

in violation of 21 U.S.C. § 846. After this court affirmed his sentence on direct

appeal, Swanson filed a section 3582(c)(2) motion based on Amendment 706 to

the Sentencing Guidelines, which lowered the offense levels that apply based on

the quantity of crack cocaine attributed to a defendant. On appeal, Swanson

argues that the district court erred in finding him ineligible for a sentencing

reduction on the ground that his guideline range was determined based on his

status as a career offender under U.S.S.G. § 4B1.1, and thus had not been

subsequently lowered by the Sentencing Commission. Because Amendment 706




                                          2
became effective before Swanson was sentenced and was applied at his original

sentencing, we affirm.1

       A district court has the authority to modify a defendant’s sentence if it was

“based on a sentencing range that has subsequently been lowered by the

Sentencing Commission . . . .” 18 U.S.C. § 3582(c)(2). Under this provision,

courts cannot modify a sentence unless a retroactively applicable amendment to

the Sentencing Guidelines has the effect of lowering the guideline range upon

which a defendant’s sentence was based. United States v. Armstrong, 347 F.3d

905, 909 (11th Cir. 2003). We review de novo a district court’s legal conclusions

about the scope of its authority under section 3582(c)(2). United States v. Moore,

541 F.3d 1323, 1326 (11th Cir. 2008). We review the denial of a section

3582(c)(2) motion for abuse of discretion. United States v. Jules, 595 F.3d 1239,

1241 (11th Cir. 2010).

       Because Amendment 706 became effective before Swanson was sentenced

and was applied at his original sentencing, it did not subsequently lower his

guideline range. Amendment 706 became effective on November 1, 2007.

U.S.S.G. App. C, Amend. 706 (2007). Swanson was sentenced on June 9, 2008.



       1
         The district court denied the motion on a different ground, but we may affirm for any
reason supported by the record. United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008).

                                               3
His guideline range was calculated pursuant to the 2007 Federal Sentencing

Guidelines Manual, which incorporated the revision mandated by Amendment

706. While Swanson’s guideline range was ultimately determined based on his

status as a career offender under U.S.S.G. § 4B1.1, his base offense level was also

calculated under U.S.S.G. § 2D1.1(c) and, pursuant to Amendment 706, reduced

by two levels because his offense involved crack cocaine. Therefore, the district

court had no authority under section 3582(c)(2) to modify Swanson’s sentence.

      To the extent that Swanson challenges his original sentence – he argues that

both the crack-powder sentencing disparity and the inapplicability of Amendment

706's base offense level reduction to defendants sentenced as career offenders

violate the Equal Protection Clause – the district court properly declined to

address these arguments because they are outside the scope of a section 3582

proceeding. See United States v. Bravo, 203 F.3d 778, 781-82 (11th Cir. 2000)

(holding that district courts lack jurisdiction under section 3582(c) to consider

challenges to the original sentence or to change original sentencing determinations

“with the sole exception of the guideline range that has been amended since the

original sentencing.”). Swanson has also raised these equal protection claims in a

28 U.S.C. § 2255 motion pending in the district court, which is the proper vehicle

for a collateral attack on his original sentence.

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     Accordingly, we affirm the district court’s denial of Swanson’s § 3582(c)(2)

motion.

     AFFIRMED.




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