                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                   FILED
                                                           U.S. COURT OF APPEALS
                                No. 08-12560                 ELEVENTH CIRCUIT
                            Non-Argument Calendar                APRIL 22, 2009
                          ________________________            THOMAS K. KAHN
                                                                    CLERK
                      D. C. Docket No. 06-14028-CR-KMM

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus

ANTONIO FERGUSON,
a.k.a. Pimp Tony,

                                                             Defendant-Appellant.

                          ________________________

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

                                 (April 22, 2009)

Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.

PER CURIAM:

      Antonio Ferguson, through counsel, appeals the district court’s denial of his

motion for a reduced sentence, pursuant to 18 U.S.C. § 3582(c)(2) and Amendment
706 to the Sentencing Guidelines, which reduced base offense levels applicable to

crack cocaine offenses.      On appeal, Ferguson concedes that our precedent

forecloses his argument, but, in order to preserve the issue, argues that the district

court erred in denying his motion. After thorough review, we affirm.

      “In a proceeding to modify a sentence under 18 U.S.C. § 3582(c)(2), we

review de novo the district court’s legal conclusions regarding the scope of its

authority under the Sentencing Guidelines.”      United States v. White, 305 F.3d

1264, 1267 (11th Cir. 2002).

      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). The Sentencing Commission has noted that a defendant is

ineligible for a sentence reduction where an “amendment does not have the effect

of lowering [his] applicable guideline range because of the operation of another

guideline or statutory provision.” U.S.S.G. § 1B1.10, comment. (n.1(A)).

      Ferguson correctly concedes that our holding in United States v. Williams,

549 F.3d 1337 (11th Cir. 2008), controls the outcome of the case.            Because

Ferguson’s guideline range was based on the statutory minimum sentence of 240

months’ imprisonment, rather than the guideline section applicable to drug



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offenses, Amendment 706 did not affect the range and he was ineligible for a

sentence reduction under § 3582(c)(2). See Williams, 549 F.3d at 1342 (holding

that 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”). Accordingly, we affirm.

      AFFIRMED.




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