                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            April 13, 2009
                             No. 08-14709                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                 D. C. Docket No. 93-00040-CR-T-24-EAJ

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

EMERY VIDEL MCFADDEN,

                                                         Defendant-Appellant.


                       ________________________

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

                              (April 13, 2009)

Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
      Emery Videl McFadden, a federal prisoner convicted of crack cocaine

offenses, appeals the district court’s denial of a sentence reduction under 18 U.S.C.

§ 3582(c)(2). The district court determined that Amendment 706 to the Sentencing

Guidelines did not lower McFadden’s original guideline range, which was based

on a statutory mandatory minimum. We agree with the district court and AFFIRM.

                                I. BACKGROUND

      In 1993, the district court sentenced McFadden to 160 months of

imprisonment for knowingly and intentionally distributing a quantity of crack

cocaine (count one), and a concurrent 240 months of imprisonment for knowingly

and intentionally distributing in excess of 50 grams of crack cocaine (count two),

both in violation of 21 U.S.C. § 841(a)(1). McFadden’s twenty-year mandatory

minimum sentence on count two was imposed as a result of his prior drug felony

conviction.

      In February 2008, the district court sua sponte ordered the government, the

probation office, and counsel for McFadden to assess the impact of Amendment

706 on McFadden’s sentence. McFadden argued that the district court lacked

jurisdiction to impose the 240-month mandatory sentence in 1993 because the

government’s notice of an enhanced penalty was deficient under 21 U.S.C.




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§ 851. The district court determined this was an extraneous resentencing issue that

could not be litigated in a § 3582(c)(2) proceeding. Accordingly, the court

concluded that McFadden was not entitled to a two-level reduction under

Amendment 706 because he was sentenced pursuant to a statutory mandatory

minimum.

      On appeal, McFadden repeats his argument that the government’s faulty

notice of an enhanced penalty deprived the district court of jurisdiction to impose a

mandatory sentence of 240 months of imprisonment. As such, McFadden contends

that he is eligible for a sentence reduction under Amendment 706.

                               II. DISCUSSION

      We review a district court’s decision to reduce a sentence in a § 3582(c)(2)

proceeding for abuse of discretion; we review its interpretation of the law de novo.

See United States v. Williams, 549 F.3d 1337, 1338 (11th Cir. 2008) (per curiam).

A district court may reduce a defendant’s sentence under Amendment 706 if his

sentence was based on the § 2D1.1 offense level for crack cocaine offenses. See

id. at 1339. If the defendant’s sentence was based on something other than the

§ 2D1.1 offense level, such as a statutory mandatory minimum, then Amendment

706 does not impact his sentence. See id. at 1342 (concluding that Williams’

sentence “would not fall within the scope of Amendment 706” because he was



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subject to a statutory mandatory minimum); see also U.S.S.G. § 1B1.10, comment.

(n.1(A)) (2008) (prohibiting a sentence reduction where 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)”).

      The district court correctly determined that McFadden’s sentence was

unaffected by Amendment 706 because he was sentenced pursuant to a statutory

mandatory minimum. See Williams, 549 F.3d at 1342. Because McFadden’s

original guideline range was not based on his § 2D1.1 offense level, Amendment

706 did not change his guideline range. The district court also correctly

determined that it lacked authority to evaluate the sufficiency of the government’s

notice of an enhanced penalty. See United States v. Bravo, 203 F.3d 778, 782

(11th Cir. 2000) (concluding that § 3582(c)(2) “does not grant to the court

jurisdiction to consider extraneous resentencing issues”). In a § 3582(c)(2)

proceeding, the district court is required to leave intact “all original sentencing

determinations.” Id. at 781. Accordingly, the district court properly rejected

McFadden’s arguments and denied a sentence reduction under § 3582(c)(2).

      For these reasons, we AFFIRM.

      AFFIRMED.



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