                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                               No. 09-11925                  AUGUST 17, 2009
                           Non-Argument Calendar            THOMAS K. KAHN
                                                                CLERK
                         ________________________

                  D. C. Docket No. 04-00042-CR-OC-1OGRJ

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

SAMUEL HILL,
a.k.a. Prat,

                                                           Defendant-Appellant.
                         ________________________

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

                               (August 17, 2009)

Before BIRCH, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      Samuel Hill, through counsel, appeals the district court’s denial of a

sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706 to the
Sentencing Guidelines, and the district court’s denial of his post-order motion to

reopen § 3582(c)(2) proceedings and motion for reconsideration. On appeal, Hill

argues that the district court abused its discretion by denying, sua sponte, a

sentence reduction on the basis that he was accountable for 4.5 kilograms of crack

cocaine, when he had not filed a § 3582(c)(2) motion and did not have an

opportunity to present evidence to the district court regarding the drug amount.

After thorough review, we affirm.

      “We review de novo a district court’s conclusions about the scope of its

legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d

983, 984 (11th Cir. 2008). We review for abuse of discretion a district court’s

decision whether to reduce a sentence pursuant to § 3582(c)(2). United States v.

White, 305 F.3d 1264, 1267 (11th Cir. 2002). A district court’s findings of fact are

reviewed for clear error. United States v. Crawford, 407 F.3d 1174, 1177 (11th

Cir. 2005). We will not remand for clear error unless we have a definite and firm

conviction that a mistake has been made. Id. We may affirm a district court’s

judgment on any ground supported by the record. Turlington v. Atlanta Gas Light

Co., 135 F.3d 1428, 1433 n.9 (11th Cir. 1998).

      Under the law of the case doctrine, the district court and this Court are

“bound by findings of fact and conclusions of law made by the court of appeals in



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a prior appeal of the same case.” United States v. Stinson, 97 F.3d 466, 469 (11th

Cir. 1996). Accordingly, a decision may only be challenged at a later time if (1) a

subsequent trial produces substantially different evidence, (2) controlling authority

has since made contrary decisions of law applicable to an issue, or (3) the prior

decision was clearly erroneous and would create manifest injustice. Id.

      A district court has subject matter jurisdiction, under 18 U.S.C. § 3582(c)(2),

to reduce a defendant’s sentence if his sentencing range has been lowered by a

retroactive amendment to the Sentencing Guidelines, “upon motion of the

defendant or the Director of the Bureau of Prisons, or on [the court’s] own

motion.” 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 is, therefore, not

authorized under § 3582(c)(2) -- if the retroactive amendment does not have the

effect of lowering the defendant’s applicable guideline range.            U.S.S.G. §

1B1.10(a)(2)(B).

      Amendment 706 to the Sentencing Guidelines reduced base offense levels

for crack cocaine offenses. United States v. Jones, 548 F.3d 1366, 1368 (11th Cir.

2008), cert. denied, 129 S. Ct. 1657 (2009).      Before Amendment 706, a base



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offense level of 38 applied to drug offenses involving at least 1.5 kilograms of

crack cocaine. See, e.g., U.S.S.G. § 2D1.1(c)(1) (2000). Now, a base offense level

of 38 applies to an offense involving at least 4.5 kilograms of crack cocaine, and a

base offense level of 36 applies to an offense involving at least 1.5, but less than

4.5, kilograms of crack cocaine. See U.S.S.G. § 2D1.1(c)(1), (2) (2008). We have

held that a defendant who was accountable for at least 4.5 kilograms of crack

cocaine was ineligible for § 3582(c)(2) relief because Amendment 706 did not

lower his base offense level and, therefore, his guideline range was not reduced.

See Jones, 548 F.3d at 1369. Thus, if a defendant is responsible for at least 4.5

kilograms of crack cocaine, Amendment 706 does not reduce his applicable

guideline range, and he is ineligible for a sentence reduction under § 3582(c)(2).

See id.

      If a district court is authorized to reduce a sentence pursuant to § 3582(c)(2),

it may do so only after considering the factors set forth in 18 U.S.C. § 3553(a). 18

U.S.C. § 3582(c)(2). A § 3582(c)(2) motion to reduce a sentence does not provide

a basis for de novo resentencing. United States v. Moreno, 421 F.3d 1217, 1220

(11th Cir. 2005). “[A]ll original sentencing determinations remain unchanged with

the sole exception of the guideline range that has been amended since the original




                                          4
sentencing.” United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000) (emphasis

in the original).

       As an initial matter, the district court did not act outside its jurisdiction by

denying a sentence reduction.       Hill’s initial 2008 motion for appointment of

counsel was properly, and liberally, construed as a § 3582(c)(2) motion, because it

contained arguments as to why Hill should receive a sentence reduction under

Amendment 706.       See Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)

(holding that courts may liberally construe pro se pleadings).

       Second, the district court did not clearly err in finding that Hill was

accountable for at least 4.5 kilograms of crack cocaine.         The sentencing court

adopted the factual findings in the PSI, which included a finding that Hill was

accountable for “at the minimum . . . approximately 4.5 kilograms” of crack

cocaine. The PSI’s description of the offense conduct also showed that Hill was

responsible for at least 4.5 kilograms of crack cocaine, since it provided that Hill:

(1) sold 10.6 grams of crack cocaine to a confidential source; and (2) at a

minimum, bought 3.5 grams of crack cocaine twice a week for two years, 113.4

grams of crack cocaine twice a week for two months, and 7 grams of crack cocaine

three times a week for two years. These transactions amounted to 4.737 kilograms

of crack cocaine. Hill did not object to these factual findings at sentencing, thereby



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admitting the findings for the purpose of sentencing. See United States v. Wade,

458 F.3d 1273, 1277 (11th Cir. 2006) (“It is the law of this circuit that a failure to

object to allegations of fact in a PSI admits those facts for sentencing purposes.”).

      Moreover, we recognized on direct appeal of Hill’s original sentence that the

district court found that the offenses involved distributing 4.5 kilograms of crack

cocaine.   See United States v. Hill, 176 F. App’x 22, 25 (11th Cir. 2006)

(unpublished). Hill did not object to the drug quantity amount on direct appeal,

and even if we had the authority to review this issue again, the law of the case

doctrine precludes us from reviewing the finding that Hill was accountable for 4.5

kilograms of crack cocaine. See Stinson, 97 F.3d at 469.

      In sum, the district court properly found that Hill was ineligible for a

sentence reduction under Amendment 706, because he was responsible for at least

4.5 kilograms of crack cocaine, and his offense level remained 38. See U.S.S.G. §

2D1.1(c)(1); Jones, 548 F.3d at 1369. The court also did not err by not considering

the 3553(a) factors because these factors only need to be considered if a defendant

is eligible for § 3582 relief, and Hill was not eligible for relief. See United States

v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998) (stating a district court first must

discern whether an amendment would lower a guideline range and then consider

the § 3553(a) factors to determining whether, and to what extent, to lower a



                                           6
defendant’s sentence). Moreover, the district court could not have resentenced Hill

based on the § 3553(a) factors alone because they do not provide an independent

basis for reconsideration of his sentence.    See 18 U.S.C. § 3582(c)(2) (only

authorizing a court to reduce a sentence where a defendant’s original sentencing

range has been reduced by the Sentencing Commission).

       Likewise, contrary to Hill’s suggestion, United States v. Booker, 543 U.S.

220 (2005), did not provide an independent basis for § 3582 relief, and the

transition from mandatory to advisory guidelines did not grant the district court

jurisdiction to reduce Hill’s sentence. See Jones, 548 F.3d at 1369 (holding that

Booker does not provide an independent basis for a sentence reduction); United

States v. Melvin, 556 F.3d 1190, 1192-93 (11th Cir.), cert. denied, 129 S. Ct. 2382

(2009) (holding that Booker does not apply to § 3582(c)(2) motions).

      Accordingly, we affirm.

      AFFIRMED.




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