                Not for Publication in West's Federal Reporter.

           United States Court of Appeals
                        For the First Circuit


No. 04-1477

                      UNITED STATES OF AMERICA,

                                 Appellee,

                                      v.

                              CLINT JOSEPH,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Joseph A. DiClerico, U.S. District Judge]


                                   Before

               Torruella and Lynch, Circuit Judges,
                Stafford,* Senior District Judge.



     Elaine Mittleman on brief for appellant.
     Aixa Maldonado-Quiñones, Assistant United States Attorney, and
Thomas P. Colantuono, United States Attorney, on brief for
appellee.



                               May 23, 2008




     *
          Of   the   Northern      District      of    Florida,   sitting   by
designation.
           Per Curiam.         This is a sentencing appeal.            Clint Joseph

pled   guilty     in   December      2003   to   possession     with     intent     to

distribute   five      grams    or   more   of    cocaine     base.      21   U.S.C.

§§   841(a)(1),    841(b)(1)(B)(iii).            On   March   19,     2004,   he   was

sentenced to eighty-seven months' imprisonment, five years of

supervised release, and a special assessment of $100. The sentence

was at the low end of the Guidelines range.                   The court rejected

Joseph's argument that he receive the mandatory minimum sentence of

sixty months.

           The sentence was imposed before the Supreme Court's

decision in United States v. Booker, 543 U.S. 220 (2005). Joseph's

first argument is that his sentence should be vacated and the case

remanded to the sentencing court under Booker.                But Joseph plainly

does not meet the standards for such a remand under the circuit's

plain error standard for unpreserved claims of Booker error, set

out in United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir.

2005).   We affirm his sentence.

           Joseph also argues the case should be remanded in light

of two arguments he has never presented to the district court.

First, he argues that he should be resentenced in light of a recent

amendment to the Sentencing Guidelines reducing the base offense

level for most crack cocaine offenses.                See U.S.S.G. § 2D1.1; id.

app. C, amend. 711 (effective Nov. 1. 2007).                  On March 3, 2008,

this amendment to the Guidelines was made retroactive, which allows


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defendant to file a post-sentencing motion with the district court

to modify his sentence under 18 U.S.C. § 3582(c)(2).      See id. §

1B1.10.   Second, he argues that the Guideline which makes the

amendment retroactive, section 1B1.10, is itself unconstitutional,

because according to Joseph, the provision provides limitations on

the court's discretion once the court calculates the amended

Guidelines range.

          If Joseph so chooses, he may file appropriate motions to

raise these issues in the district court. Nothing in this judgment

precludes that.    We simply affirm his original sentence and remand

the matter to the district court to entertain any motions defendant

may promptly file.   See United States v. Connell, 960 F.2d 191, 197

(1st Cir. 1992).

          So ordered.




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