                                                            [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                           FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                             ________________________ ELEVENTH CIRCUIT
                                                               DEC 17, 2008
                                  No. 08-12895               THOMAS K. KAHN
                              Non-Argument Calendar              CLERK
                            ________________________

                      D. C. Docket No. 94-05004-CR-5-LAC

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                     versus

ALPHONSE GAINER,
a.k.a. Daddy Black,
a.k.a. Phillip L. Black,

                                                            Defendant-Appellant.


                            ________________________

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

                               (December 17, 2008)

Before DUBINA, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
      Appellant Alphonse Gainer appeals the district court’s denial of his motion

for reconsideration of its decision to reduce his sentence to the top of his amended

guideline range, under 18 U.S.C. § 3582(c)(2), based on Amendment 706 to the

Sentencing Guidelines. The district court, on its own motion, reduced Gainer’s

sentence to the top of his amended guideline range, but did not reduce Gainer’s

sentence any further because he had 26 criminal history points. Gainer filed a

motion for reconsideration, arguing that the court should hold a hearing to

determine whether: (1) the district court accurately calculated his criminal history;

(2) the district court should have applied an obstruction of justice enhancement;

and (3) the substance for which he was sentenced was indeed crack cocaine. Gainer

also asked the court to reduce his sentence based on the crack/cocaine sentencing

disparity and his good behavior while incarcerated. The district court denied

Gainer’s motion.

                                          I.

      On appeal, Gainer argues that procedural due process required the district

court to hold a hearing to: (1) give him a chance to be heard regarding his criminal

history; (2) hear evidence concerning the 18 U.S.C. § 3553(a) factors; (3) resolve

disputed sentencing facts; and (4) give Gainer the opportunity to be present at his §

3582 proceeding.



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      Under § 3582, a district court may not modify a term of imprisonment once

it has been imposed except where expressly permitted by statute or by

Fed.R.Crim.P. 35. 18 U.S.C. § 3582(c)(1)(B). One statutory exception to this

general rule includes relief under § 3582(c)(2), which provides:

      [I]n the case of a defendant who has been sentenced to a term of
      imprisonment based on a sentencing range that has subsequently been
      lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o),
      upon motion of the defendant or the Director of the Bureau of Prisons,
      or on its own motion, the court may reduce the term of imprisonment,
      after considering the factors set forth in section 3553(a) to the extent
      that they are applicable, if such a reduction is consistent with
      applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2). On November 1, 2007, the Sentencing Commission

promulgated Amendment 706, which amended the Drug Quantity Table in

U.S.S.G. § 2D1.1(c). U.S.S.G. App. C, Amend. 706 (2007). The Commission

made this amendment retroactively applicable, effective as of March 3, 2008. See

U.S.S.G., App. C, Amend. 713 (Supp. May 1, 2008).

      The Federal Rules of Criminal Procedure permit a defendant’s absence from

a sentence modification proceeding. See Fed. R. Crim. P. 43(b)(4); United States

v. Parrish, 427 F.3d 1345, 1347-48 (11th Cir. 2005) (regarding right to be present

at a revocation hearing and noting that Rule 43(b)(4) exempts proceedings under

Rule 35 and § 3582(c) from the general rule that the defendant must be present at

sentencing). With regard to factual disputes that can be raised at a § 3582(c)(2)

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proceeding, we have addressed that issue in United States v. Cothran, 106 F.3d

1560 (11th Cir. 1997), where we stated that “the district court is to leave all of its

previous factual decisions intact when deciding whether to apply a guideline

retroactively.” Id. at 1563 (quoting United States v. Adams, 104 F.3d 1028, 1031

(8th Cir. 1997)).

      After reviewing the record and reading the parties’ briefs, we conclude that

the district court did not abuse its discretion in refusing to hold a hearing because

the Federal Rules of Criminal Procedure permitted Gainer’s absence from a § 3582

proceeding, and our precedent foreclosed the district court from reconsidering

previously-adjudicated facts in this proceeding.

                                           II.

      Gainer next argues that the Supreme Court’s United States v. Booker, 543

U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), decision applies to §

3582(c)(2) proceedings to make the Sentencing Guidelines advisory in those

proceedings. According to Gainer, since the guidelines are advisory, the district

court should have taken into account the crack/cocaine sentencing disparity and

imposed a downward variance as a result of that disparity.

      In the § 3582(c)(2) context, “we review de novo the district court’s legal

conclusions regarding the scope of its authority under the Sentencing Guidelines.”



                                            4
United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002). In Booker, the

Supreme Court re-affirmed that “[a]ny fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be admitted by the defendant

or proved to a jury beyond a reasonable doubt.” Booker, 543 U.S. at 244, 125 S.

Ct. at 756. The Court concluded that this constitutional holding was incompatible

with the mandatory nature of the guidelines, and therefore, made the guidelines

advisory for sentencing proceedings. Id. at 245, 258-60, 125 S. Ct. at 756, 764-65.

Nowhere in Booker, however, did the Supreme Court mention § 3582(c)(2). See

generally id.

      The district court’s statements indicate that it would not have imposed a

downward variance, even if it had viewed the guidelines as advisory. Therefore,

any error that it might have made regarding this issue would be harmless statutory

error. Accordingly, we affirm the district court’s order denying reconsideration

and we affirm Gainer’s sentence.

      AFFIRMED.




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