                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 09-13216                ELEVENTH CIRCUIT
                                                            MAY 13, 2010
                        Non-Argument Calendar
                                                             JOHN LEY
                      ________________________
                                                              CLERK

                D. C. Docket No. 89-00004-CR-T-17-TGW

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

JEFFREY EUGENE LEE,
aka Jed,

                                                        Defendant-Appellant.


                      ________________________

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

                             (May 13, 2010)

Before EDMONDSON, BIRCH and BLACK, Circuit Judges.


PER CURIAM:
       Jeffrey Eugene Lee, a federal prisoner convicted of crack cocaine offenses,

appeals the district court’s denial of his counseled 18 U.S.C. § 3582(c)(2) motion

for reduction of sentence based on Amendment 706. The issue on appeal is

whether the district court erred by concluding Lee was not eligible for a reduction

because he was subject to a mandatory minimum term of life imprisonment. After

review, we affirm.1

       A sentence reduction under § 3582(c)(2) must be “consistent with applicable

policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3583(c)(2).

The applicable policy statements state that a sentence reduction is not authorized if

“[a]n amendment listed in subsection (c) does not have the effect of lowering the

defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). A defendant

whose original sentence ultimately was based on something other than the offense

level calculation under § 2D1.1 is precluded from receiving a sentence reduction

because the amendment does not have the effect of lowering the applicable

guideline range. See United States v. Moore, 541 F.3d 1323, 1330 (11th Cir.

2008), cert. denied., McFadden v. United States, 129 S. Ct. 965 (2009), and cert.

denied, 129 S. Ct. 1601 (2009).




       1
         “We review de novo a district court’s conclusions about the scope of its legal authority
under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d 983, 984 (11th Cir. 2008).

                                                2
      Here, the district court did not err by denying Lee’s motion for relief under

§ 3582(c)(2) because his guideline range was based on the statutory minimum

sentence of life imprisonment and not on the base offense level in § 2D1.1. See

Moore, 541 F.3d at 1327; United States v. Williams, 549 F.3d 1337, 1342 (11th

Cir. 2008) (holding a defendant was not eligible for a sentence reduction under

Amendment 706 because he “was subject to a statutory mandatory minimum that

replaced his original sentencing guideline range”). Lee cannot challenge, in this

§ 3582(c)(2) proceeding, the district court’s original sentencing determination that

he was subject to the mandatory statutory minimum penalty. See United States v.

Bravo, 203 F.3d 778, 781 (11th Cir. 2000) ( stating “all original sentencing

determinations remain unchanged with the sole exception of the guideline range

that has been amended since the original sentencing”). Finally, to the extent Lee

argues the district court would have had the discretion to go below the amended

guideline range, his argument is foreclosed by precedent. United States v. Melvin,

556 F.3d 1190 (11th Cir.), cert. denied, 129 S. Ct. 2382 (2009). Accordingly, we

affirm the district court’s denial of Lee’s § 3582(c)(2) motion.

      AFFIRMED.




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