                                                                  [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                       FILED
                                                               U.S. COURT OF APPEALS
                                No. 11-10009                     ELEVENTH CIRCUIT
                            Non-Argument Calendar                    JUNE 2, 2011
                          ________________________                    JOHN LEY
                                                                       CLERK
                    D.C. Docket No. 1:99-cr-00027-WPD-20

UNITED STATES OF AMERICA,

                                   llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,

                                      versus

ANDRE CHUNG, a.k.a. Andy,

                                llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                  (June 2, 2011)

Before HULL, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

      Pro se defendant-appellant Andre Chung appeals the denial of his 18 U.S.C.

§ 3582(c)(2) motion to modify or reduce his sentence. For the reasons that follow,
we affirm.

      In 1999, Chung was convicted of conspiracy to possess with intent to

distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. In the

presentence investigation report (PSI), the probation officer noted that Chung was

responsible for at least 100 kilograms of cocaine, which placed Chung’s base

offense level at 36 under U.S.S.G. § 2D1.1. With no enhancements or reductions,

and a criminal history category II, Chung’s guideline imprisonment range was 210

to 262 months’ imprisonment. Chung objected that his base offense level should

not have been based on more than 50 kilograms of cocaine because an amount

higher than 50 kilograms was inconsistent with grand jury testimony. At

sentencing, the court overruled Chung’s objections and also applied enhancements

for obstruction of justice under § 3C1.1 and possession of a firearm under

§ 2D1.1. Under the court’s calculations, Chung had an offense level of 40 and a

guideline range of 324 to 405 months’ imprisonment. Chung was sentenced to

400 months’ imprisonment. On direct appeal, this court affirmed Chung’s

conviction and sentence.

      In December 2010, Chung filed the instant pro se § 3582(c) motion to

reduce his sentence based on Guideline Amendment 591. Chung argued that the

change made by Amendment 591 required that the applicable offense guideline be

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determined according to the offense of conviction rather than on judicial findings

of actual conduct. Thus, he alleged, the district court failed to select the correct

guideline for the offense of conviction. Chung concluded that, because he was

challenging the district court’s guideline selection and not its determination of his

base offense level, Amendment 591 was applicable and his sentence should be

reduced to the 20-year mandatory maximum under § 841(a) offenses for which no

drug quantity is alleged.

      The court denied Chung’s motion, finding that Amendment 591 was not

applicable and that a § 3582 claim was not appropriate for an alleged violation

under Apprendi v. New Jersey, 530 U.S. 466 (2000). This is Chung’s appeal.

      We review a district court’s decision whether to reduce a defendant’s

sentence pursuant to 18 U.S.C. § 3582(c)(2) for abuse of discretion. United States

v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003).

      “Under 18 U.S.C. § 3582(c)(2), a district court has discretion to reduce the

term of imprisonment of an already incarcerated defendant when that defendant

was sentenced based on a sentencing range that was subsequently lowered by the

Sentencing Commission pursuant to 28 U.S.C. § 994(o).” United States v. Bravo,

203 F.3d 778, 780 (11th Cir. 2000). But § 3582(c)(2) does not grant the district

court jurisdiction to reconsider all original sentencing determinations. Id. at 781.

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Moreover, the district court may not modify an imposed term of imprisonment

upon a § 3582(c)(2) motion unless the defendant’s sentencing range was

subsequently lowered by an amendment to the Sentencing Guidelines. Id.

       Amendment 591 added language to U.S.S.G. § 1B1.1(a) instructing the

district court to “determine, pursuant to § 1B1.2 (Applicable Guidelines), the

offense guideline section from Chapter Two (Offense Conduct) applicable to the

offense of conviction.” U.S.S.G. App. C, Amend. 591.1 Furthermore, Amendment

591 changed U.S.S.G. § 1B1.2(a), instructing the sentencing court to “[r]efer to

the Statutory Index (Appendix A) to determine the Chapter Two offense guideline,

referenced in the Statutory Index for the offense of conviction. . . . For statutory

provisions not listed in the Statutory Index, use the most analogous guideline.” Id.

(amending U.S.S.G. § 1B1.2(a)). In United States v. Moreno, we explained that

Amendment 591

       was designed to clarify whether enhanced penalties provided by
       U.S.S.G. § 2D1.2 (relating to drug offenses near protected locations
       or involving underage or pregnant individuals) apply only where the
       offense of conviction is referenced to that guideline, or whether such
       enhanced penalties can be used whenever a defendant’s relevant,
       uncharged conduct includes drug sales in a protected location or drug
       sales involving a protected individual. Specifically, in order for the
       enhanced penalties in § 2D1.2 to apply, the defendant must be


       1
         Amendment 591 became effective on November 1, 2000 and is retroactively applicable.
U.S.S.G. § 1B1.10(c); U.S.S.G. App. C, Amend. 591.

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      convicted of an offense referenced to § 2D1.2, rather than simply
      have engaged in conduct described by that guideline.

United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005) (quotation and

citation omitted). Under Appendix A, § 2D1.1 is the applicable guideline section

for § 841(a) offenses. U.S.S.G. App. A.

      Amendment 591, however, only applies to the selection of the relevant

offense guideline, not the selection of a base offense level within the applicable

offense guideline. Moreno, 421 F.3d at 1219-20. Furthermore, Amendment 591

does not constrain the use of judicially found facts to select a base offense level

within the relevant guideline. Id.

      Here, in determining Chung’s sentence, the district court applied the

applicable guideline selection from Appendix A, and thus, Amendment 591 does

not apply to him. Accordingly, the district court did not abuse its discretion in

denying his § 3582(c)(2) motion.

      AFFIRMED.




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