                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                No. 08-14859                    MAR 4, 2009
                            Non-Argument Calendar             THOMAS K. KAHN
                          ________________________                CLERK


                       D. C. Docket No. 06-00083-CR-CG

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

INERD BERNARD YOUNG,

                                                             Defendant-Appellant.

                          ________________________

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

                                 (March 4, 2009)

Before BIRCH, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      Inerd Bernard Young, a federal prisoner convicted of a crack cocaine

offense, through counsel, appeals from the district court’s denial of his counseled

motion for a reduced sentence, pursuant to 18 U.S.C. § 3582(c)(2). On appeal,
Young argues that the district court erred by concluding that it lacked authority to

grant his § 3582(c)(2) motion. After thorough review, we affirm.

      Generally, “[w]e review a district court’s decision whether to reduce a

sentence pursuant to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the

sentencing guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d

1341, 1343 (11th Cir. 2003). However, 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.” United States v. White, 305 F.3d 1264, 1267

(11th Cir. 2002). We also review “de novo questions of statutory interpretation.”

United States v. Maupin, 520 F.3d 1304, 1306 (11th Cir. 2008).

      A district court may not modify a term of imprisonment once it has been

imposed except where expressly permitted by statute or by Federal Rule of

Criminal Procedure 35. 18 U.S.C. § 3582(c)(1)(B). One statutory exception to

this general rule involves 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).

                                          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. The effect of Amendment 706 is to provide a two-

level reduction in base offense levels for certain crack cocaine offenses. See id.

      Section 1B1.10 of the Sentencing Guidelines provides that a sentence

reduction is not authorized under § 3582(c)(2) if “[a]n amendment listed in

subsection (c) [which includes Amendment 706] does not have the effect of

lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).

The commentary elaborates that a reduction is not authorized if “an amendment

listed in subsection (c) is applicable to the defendant but the amendment 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, cmt. n.1(A). In

addition, Section 5G1.1 of the Sentencing Guidelines provides that “[w]here a

statutorily required minimum sentence is greater than the maximum of the

applicable guideline range, the statutorily required minimum sentence shall be the

guideline sentence.” U.S.S.G. § 5G1.1(b).

      In United States v. Williams, we considered whether the district court had

the authority to grant a defendant a sentence reduction pursuant to Amendment



                                            3
706. See 549 F.3d 1337, 1338 (11th Cir. 2008). There, Williams’s guideline range

initially was 92 to 115 months’ imprisonment, but because he faced a statutory

minimum term of 120 months’ imprisonment, the district court determined that his

range was 120 months’ imprisonment.          Id.   at 1338.   Williams received a

downward departure, pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), based

on his substantial assistance, and he was ultimately sentenced to 60 months’

imprisonment. Id.

      In holding that the district court did not have the authority to grant Williams

a sentence reduction, we recognized that “a defendant whose original sentencing

range was based on something other than § 2D1.1 is precluded from receiving a

sentence reduction, since the amendment would not lower his applicable guidelines

range.” Id. at 1339 (citing Moore, 541 F.3d at 1327). We concluded that the result

was the same even if a defendant received a downward departure, because the

departure would be from the statutory minimum and “the court’s point of departure

would not shift as a result of the amendment’s lowering of the crack offense

levels.” Id. at 1340. In reaching this conclusion, we rejected Williams’s argument

that his “guideline sentence” was distinct from his “guideline range,” finding the

“attempted range/sentence distinction linguistically interesting but ultimately

unpersuasive” because, “[f]or those situations in which the mandatory minimum



                                         4
exceeds the range for the entire offense level, the ‘guideline sentence’ would [] be

the same as the ‘guideline range,’ even if it involves a ‘range’ of only one

number.”    Id. at 1340-41.    We also rejected the argument that a downward

departure under § 3553(e) constituted a waiver or dispensing of the “guideline

range,” seeing “no indication in the statute that this decreased sentence should be

read to somehow eliminate the otherwise applicable mandatory minimum.” Id. at

1341. In short, we concluded that “[b]ecause Williams 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. He thus would not fall within the scope

of Amendment 706.” Id. at 1342.

      Here, the district court correctly denied Young’s § 3582(c)(2) motion based

on its determination that Amendment 706 did not lower the guideline range that

ultimately determined his sentence. Just as in Williams, Young’s initial guideline

range was entirely below the statutory minimum, so that his range became the

statutory minimum. See U.S.S.G. § 5G1.1(b).         Also as in Williams, Young

received a downward departure, so that the statutory minimum was the point from

which the district court departed. Young’s sentence was therefore based on the

statutory minimum term of imprisonment, and the crack cocaine base offense level



                                         5
played no role in his sentence.          See Williams, 549 F.3d at 1339-40.              Because

Young was not sentenced under the otherwise applicable base offense level found

in § 2D1.1, the district court did not err in determining that Young was not eligible

for relief under Amendment 706. See id. at 1339-40, 1342.1 Accordingly, we

affirm.

       AFFIRMED.




       1
          Moreover, Young’s assertion that defendants who provide substantial assistance should
not be in a worse position than those who do not overlooks the fact that his substantial assistance
enabled the district court originally to sentence him below the statutory minimum term of
imprisonment, which it would not have been able to do otherwise. See 18 U.S.C. § 3553(e); United
States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir. 2007) (“Even after Booker, the district court
is bound by the statutory mandatory minimums.”).

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