                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-12759                ELEVENTH CIRCUIT
                                                           JANUARY 20, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                  D. C. Docket No. 05-00117-CR-3-LAC

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

GREGORY FONTAINE JONES,

                                                         Defendant-Appellant.


                       ________________________

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

                            (January 20, 2009)

Before BLACK, BARKETT and FAY, Circuit Judges.

PER CURIAM:
      Gregory Fontaine Jones, proceeding pro se, appeals the district court’s

denial of his motion for modification of sentence, pursuant to 18 U.S.C.

§ 3582(c)(2), based on Amendments 706 and 711 to the Sentencing Guidelines.

For the reasons set forth below, we affirm.

                                           I.

      Jones pled guilty to (1) conspiracy to possess with intent to distribute 50 or

more grams of crack cocaine and (2) possession with intent to distribute 50 or

more grams of crack cocaine, all in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(A)(iii). A probation officer determined that Jones’s guideline imprisonment

range was 210 to 262 months. However, the probation officer also noted that

Jones had two prior drug convictions and that, therefore, Jones’s statutory

mandatory minimum term of imprisonment, and guideline sentence, was life,

pursuant to § 841(b)(1)(A) and U.S.S.G. § 5G1.1(b). The government submitted

on Jones’s behalf a substantial assistance motion, pursuant to U.S.S.G. § 5K1.1

and 18 U.S.C. § 3553(e). At sentencing, the district court sentenced Jones to

concurrent terms of 240 months’ imprisonment as to each count, citing Jones’s

substantial assistance as the reason for departure.

      Jones submitted, on April 11, 2008, a § 3582(c)(2) motion to reduce

sentence. The district court denied the motion, reasoning that the statutory



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mandatory minimum term of imprisonment remained applicable and that no further

reduction was warranted beyond that already applied per the substantial assistance

motion.

                                         II.

      We review de novo “the district court’s legal conclusions regarding the

scope of its authority under the [Guidelines].” United States v. Moore, 541 F.3d

1323, 1326 (11th Cir. 2008). Pursuant to § 3582(c)(2), a district court may reduce

an already-incarcerated defendant’s sentence if the sentence was determined using

a guideline imprisonment range that retroactive amendments to the Guidelines

have reduced, and if such a reduction would be consistent with the policy

statements issued by the Sentencing Commission, which are contained in U.S.S.G.

§ 1B1.10. 18 U.S.C. § 3582(c).

      The commentary to the Guidelines instructs that a defendant is not eligible

for a § 3582(c)(2) reduction “if the amendment [in question] does not have the

effect of lowering the defendant’s applicable guideline range because of the

operation of another guideline or statutory provision (e.g., a statutory mandatory

minimum term of imprisonment.)” U.S.S.G. § 1B1.10, comment. (n.1(A)). In a

recent published case, United States v. Williams, No. 08-12475, manuscript op. at

5-11 (11th Cir. Nov. 26, 2008), we held that this principle applied even where the



                                          3
district court departed downward from a statutory mandatory minium term of

imprisonment pursuant to a § 5K1.1 motion. We reasoned that, (1) given the

statutory mandatory minimum term of imprisonment, the “district court’s point of

departure would not shift as a result of [Amendment 706’s] lowering of the crack

offense levels”; and (2) “the decreased sentence [imposed pursuant to the § 5K1.1

motion] should [not] be read to somehow eliminate the otherwise applicable

mandatory minimum.” Id. at 7, 9-10. We concluded that “[b]ecause [the

defendant] was subject to a statutory mandatory minimum that 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.” Id. at 11-12.

                                        III.

       The district court did not err in denying Jones’s motion for modification of

sentence, as it was not authorized to give such a reduction. See Moore, 541 F.3d at

1326. Jones was not eligible for a § 3582(c)(2) because he was sentenced pursuant

to a statutory mandatory minimum term of imprisonment, and departure therefrom

pursuant to a substantial assistance motion, rather than a guideline imprisonment

range that ultimately was altered under Amendment 706. See U.S.S.G. § 1B1.10,

comment. (n.1(A)); Williams, No. 08-12475, manuscript op. at 5-11. Indeed, had



                                          4
Amendments 706 and 711 been in effect at the time of his sentencing, Jones’s

statutory mandatory minimum term of imprisonment nonetheless would have been

life and Jones’s substantial-assistance departure nonetheless would have been from

this point. See Williams, No. 08-12475, manuscript op. at 5-11. Accordingly, we

affirm.

      AFFIRMED.




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