                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 08-14545                ELEVENTH CIRCUIT
                                                                MAY 7, 2009
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                         ________________________
                                                                 CLERK

                     D. C. Docket No. 99-00030-CR-3-RV

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

MYRON CUNNINGHAM,

                                                           Defendant-Appellant.


                         ________________________

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

                                 (May 7, 2009)

Before BIRCH, HULL and WILSON, Circuit Judges.

PER CURIAM:

     Myron Cunningham appeals the district court’s denial of his motion for a
reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706 to

the U.S. Sentencing Guidelines (“the Guidelines”), which reduced the base offense

levels applicable to crack cocaine offenses. On appeal, Cunningham argues that

the district court erred because: (1) it had the authority necessary to reduce his

sentence under § 3582(c)(2); and (2) it failed to analyze the 18 U.S.C. § 3553(a)

factors, as required by our precedent.

      “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. Williams, 549 F.3d 1337,

1338 (11th Cir. 2008) (per curiam) (quoting United States v. Brown, 332 F.3d

1341, 1343 (11th Cir. 2003)). “However, where the issue presented involves a

legal interpretation, our review is de novo.” Id. at 1338-39 (citation omitted).

      A district court may modify a term of imprisonment in the case of a

defendant who was sentenced to a term of imprisonment based on a sentencing

range that has subsequently been lowered by the Sentencing Commission. 18

U.S.C. § 3582(c)(2). However, we have held that when a defendant is subject to a

statutory mandatory minimum that replaces his guideline range, that defendant is

ineligible for a sentence reduction under Amendment 706. Williams, 549 F.3d at

1342 (“Because Williams was subject to a statutory mandatory minimum that



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replaced his original sentencing guideline range, he was not sentenced according to

the base offense level in § 2D1.1, even taking into account the § 5K1.1 downward

departure. He thus would not fall within the scope of Amendment 706.”). In

Williams, we pointed out that this ineligibility is not rectified by a downward

departure below the statutory minimum when that departure is made pursuant to a

§ 5K1.1 motion for substantial assistance. Id. at 1341.

      Upon review of the record and the parties’ briefs, we find no reversible

error. Because Cunningham was subject to a mandatory minimum term of life

imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A), Amendment 706 did not

change his guideline range, even though he ultimately received a § 5K1.1

downward departure. See id. at 1340-42. Therefore, Cunningham was ineligible

for a § 3582(c)(2) sentence reduction, and we affirm the district court’s denial of

his § 3582(c)(2) motion.

      AFFIRMED.




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