                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 08-11984                ELEVENTH CIRCUIT
                                                            FEBRUARY 5, 2009
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                         ________________________
                                                                 CLERK

                      D. C. Docket No. 99-00073-CR-CB

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

KERON MCCOVERY,

                                                           Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                    for the Southern District of Alabama
                       _________________________

                              (February 5, 2009)

Before TJOFLAT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

     Keron McCovery, a federal prisoner convicted of a crack cocaine offense,
appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a

sentence reduction based on an amendment to the Sentencing Guidelines that

lowered the base offense levels applicable to crack cocaine. The district court

denied McCovery’s § 3582(c)(2) motion because it found that the crack cocaine

amendments did not lower McCovery’s sentence range based on the calculations

contained in the written judgment entered subsequent to the imposition of sentence

at the sentencing hearing. The issue on appeal is whether the district court abused

its discretion in denying McCovery’s § 3582(c)(2) motion by recalculating his

amended Guidelines sentence range using the calculations from the written

judgment rather than the calculations stated during the sentencing hearing.

       “We review a district court’s decision whether to reduce a sentence pursuant

to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing

guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343

(11th Cir. 2003).

      Generally, a “court may not modify a term of imprisonment once it has been

imposed.” 18 U.S.C. § 3582(c). However, where a defendant has been sentenced

pursuant to a sentencing range

      that has subsequently been lowered by the Sentencing
      Commission . . . the court may reduce the term of imprisonment, after
      considering the factors set forth in [18 U.S.C. § 3553(a)] to the extent
      that they are applicable, if such a reduction is consistent with

                                          2
      applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2). The Sentencing Commission’s policy statements for

reducing a term of imprisonment under 18 U.S.C. § 3582(c)(2) are located in

U.S.C.G. § 1B1.10. The policy statements indicate that a sentence reduction is not

authorized under § 3582(c)(2) if a retroactive amendment “does not have the effect

of lowering the defendant’s applicable guideline range.” U.S.C.G.

§ 1B1.10(a)(2)(B) (2008).

      A district court must engage in a two-part analysis when determining

whether to reduce a defendant’s sentence pursuant to 18 U.S.C. § 3582(c)(2).

United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). The court must: (1)

recalculate the sentence under the amended guidelines, and (2) decide, in its

discretion, whether it will choose to impose a new sentence or retain the original

sentence in light of the 18 U.S.C. § 3553(a) factors. Id. at 780-81. When the court

recalculates a sentence, it first determines “a new base [offense] level by

substituting the amended guideline range for the originally applied guideline range,

and then using that new base [offense] level to determine what ultimate sentence it

would have imposed.” Id. at 780.

      “Where there is a discrepancy between the orally imposed sentence and the

written order of judgment and committal, the oral sentence controls.” United



                                           3
States v. Khoury, 901 F.2d 975, 977 (11th Cir. 1990). “If the oral sentence is

ambiguous, then, in an attempt to discern the intent of the district court at the time

it imposed sentence, the reviewing court may consider extrinsic evidence,

including the commitment order.” Id.

      In this case, there is an alleged discrepancy between the sentence handed

down orally at the sentencing hearing and the written judgment in terms of

McCovery’s criminal history category and base offense level. We hold that the

district court abused its discretion in denying McCovery’s § 3582(c)(2) motion

because the court used the incorrect “originally applied guideline range” to

determine McCovery’s amended guideline range. See Bravo, 203 F.3d at 780.

After reviewing the sentencing transcript, we conclude that the court’s oral

sentence unambiguously changed McCovery’s criminal history category to a I, but

left McCovery’s base offense level at 38. See Khoury, 901 F.2d at 977.

Accordingly, we vacate the district court’s order and remand for a recalculation of

the amended sentence range consistent with this opinion. See Bravo, 203 F.3d at

780-81.

      VACATED AND REMANDED.




                                           4
