                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-3785
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Southern District of Iowa.
Mark Steven Ayala,                      *
                                        *      [UNPUBLISHED]
             Appellant.                 *
                                    __________

                             Submitted: October 19, 2009
                                Filed: November 4, 2009
                                 ___________

Before RILEY, HANSEN, and GRUENDER, Circuit Judges.
                            ___________

PER CURIAM.

       A grand jury charged Mark Steven Ayala (Ayala) with five separate counts in
a superseding indictment. Pursuant to the terms of a Fed. R. Crim. P. 11(e)(1)(C)1
plea agreement, Ayala pled guilty to (1) conspiracy to distribute methamphetamine,
cocaine, cocaine base, and marijuana, in violation of 21 U.S.C. § 846; and (2) use of
a person under the age of 18 to distribute methamphetamine, in violation of 21 U.S.C.
§ 861(a).



      1
       The current version of that rule is denominated Fed. R. Crim. P. 11(c)(1)(C).
      In the plea agreement, Ayala and the government agreed to a sentence of 360
months imprisonment. Ayala later sought a sentence reduction pursuant to 18 U.S.C.
§ 3582(c)(2) and Amendment 706 to the United States Sentencing Guidelines
(U.S.S.G. or Guidelines), which changed the drug quantity table set forth at U.S.S.G.
§ 2D1.1 by reducing the base offense levels for offenses involving cocaine base.
Ayala also sought a sentence reduction based upon “extraordinary and compelling
reasons” under 18 U.S.C. § 3582(c)(1)(A)(i). The district court2 denied Ayala’s
requested relief, and we affirm.

       Whether a district court had authority to modify a sentence under 18 U.S.C.
§ 3582(c) is a question of law we review de novo. See United States v. Tolliver, 570
F.3d 1062, 1065 (8th Cir. 2009) (citations omitted). Whether a district court’s
modification of a sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) is reviewed de
novo or for an abuse of discretion appears to be an open question in this circuit and
other circuits. We do not decide the review standard because § 3582(c)(1)(A)(i) was
not triggered here, a decision we review de novo.

       We conclude the district court properly denied Ayala’s requested relief under
18 U.S.C. § 3582(c)(2) because Ayala’s Guidelines range was calculated based upon
Ayala’s distribution of cocaine, marijuana, and methamphetamine, and not cocaine
base. Additionally, sentences based upon a binding Rule 11(c)(1)(C) plea agreement
cannot be altered pursuant to the Guidelines amendments reducing base offense levels
for crack cocaine offenses. See United States v. Scurlark, 560 F.3d 839, 842 (8th Cir.
2009).

      The district court also properly denied Ayala’s request for a reduced sentence
under 18 U.S.C. § 3582(c)(1)(A)(i) because the Director of the Bureau of Prisons did


      2
      The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.

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not file a motion requesting relief for “extraordinary and compelling reasons.” See
United States v. Kelley, 956 F.2d 748, 753 (8th Cir. 1992) (explaining “[t]he court
may modify a term of imprisonment upon motion by the Director of the Bureau of
Prisons after considering the factors set forth in [18 U.S.C. §] 3553(a) . . . if it finds
extraordinary and compelling reasons warrant a reduction”).

      We affirm the district court’s judgment.
                   ______________________________




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