                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                    FILED
                                                             U.S. COURT OF APPEALS
                                 No. 09-13350                  ELEVENTH CIRCUIT
                                                                 JANUARY 21, 2010
                             Non-Argument Calendar
                                                                    JOHN LEY
                           ________________________
                                                                  ACTING CLERK

                      D. C. Docket No. 97-00074-CR-CAR-5

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

CLARENCE CLARK,

                                                              Defendant-Appellant.


                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Georgia
                        _________________________
                               (January 21, 2010)

Before BLACK, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

      Clarence Clark appeals the district court’s denial of his 18 U.S.C.

§ 3582(c)(2) motion for a sentence reduction. Upon review, we affirm.
      Clark was charged with conspiracy to possess with intent to distribute crack,

possession with intent to distribute cocaine, and aiding and abetting the distribution

of crack. The government filed notice of its intent to seek enhanced penalties

under 21 U.S.C. §§ 841(b)(1) and 851. After a jury trial, Clark was convicted and

sentenced to life imprisonment based on the presentence investigation report

(“PSI”) and the guidelines calculations.

      On direct appeal, this court concluded that the sentence violated Apprendi v.

New Jersey, 530 U.S. 466 (2000), because the judge, rather than the jury, had

determined the amount of drugs involved in the offenses. Therefore, because the

life sentence exceeded the maximum allowed under § 841(b)(1)(C), the court

vacated and remanded for resentencing. The probation officer did not prepare a

corrected PSI before resentencing. At resentencing in 2002, the district court

reduced the sentence to the statutory maximum of thirty years’ imprisonment under

§ 841(b)(1)(C). This court affirmed the amended sentence.

      In 2008, Clark filed a pro se motion for a sentence reduction under 18

U.S.C. § 3582(c), alleging that Amendment 706 would have reduced his guidelines

range. The district court appointed counsel, who then filed a motion to withdraw

as counsel. Upon consideration, the court denied the § 3582(c) motion, granted

counsel’s motion to withdraw, and affirmed the sentence imposed. This appeal



                                           2
followed.

         Clark argues that, because his original sentence was vacated for violating

Apprendi, the district court improperly relied on the guideline calculations set forth

in his original PSI when determining whether he was eligible for a sentence

reduction. He also contends that the district court failed to (1) calculate his

original and amended base offense levels and guideline ranges, (2) consider the 18

U.S.C. § 3553(a) sentencing factors, and (3) explain its reasons for denying a

sentence reduction.

         We review a district court’s decision whether to reduce a sentence under

§ 3582(c)(2) for abuse of discretion and its conclusions regarding the scope of its

legal authority de novo. United States v. Williams, 549 F.3d 1337, 1339 (11th Cir.

2008).

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

defendant who was sentenced based on a sentencing range that subsequently has

been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Any

reduction, however, must be “consistent with applicable policy statements issued

by the Sentencing Commission.” Id. A reduction of a term of imprisonment is not

“consistent with applicable policy statements issued by the Sentencing

Commission,” and thus is not authorized under § 3582(c)(2), if the retroactive



                                            3
amendment does not have the effect of lowering the defendant’s applicable

guideline range. U.S.S.G. § 1B1.10(a)(2)(B). “Where the statutorily authorized

maximum sentence is less than the minimum of the applicable guideline range, the

statutorily authorized maximum sentence shall be the guideline sentence.”

U.S.S.G. § 5G1.1(a). Under § 841(b)(1)(C), the statutory maximum sentence is

thirty years’ imprisonment. 21 U.S.C. § 841(b)(1)(C).

       Here, the district court properly denied Clark’s § 3582(c) motion because

Amendment 706 did not reduce Clark’s guideline sentencing range and, therefore,

Clark was not eligible for a sentence reduction. Although the government

concedes that Clark’s offense level was determined under U.S.S.G. § 2D1.1, it

explains that the total offense level was 46,1 and the 2-level reduction under

Amendment 706 would only reduce his level to 44, leaving his guidelines range

unchanged and the statutory maximum under § 841(b)(1)(C) still applicable.

       Moreover, Clark’s arguments challenging his original sentencing

calculations may not be raised in the present action, because § 3582(c)(2)

proceedings do not constitute de novo resentencings. United States v. Bravo, 203

F.3d 778, 781 (11th Cir. 2000). Finally, because Clark was not eligible for a



       1
           In its statement of reasons at sentencing, the district court indicated the offense level
was 43. Clark concedes on appeal that it was 46. Even if the level was 43, Clark would not be
entitled to relief under § 3582(c) because his sentencing range would be thirty years.

                                                  4
§ 3582(c) sentence reduction, the court was not required to consider the 18 U.S.C.

§ 3553(a) sentencing factors, and any error in failing to calculate Clark’s amended

base offense level and guideline range was harmless. Accordingly, we affirm the

district court’s denial of Clark’s § 3582 motion.

      AFFIRMED.




                                          5
