                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                    FILED
                       ________________________         U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             February 1, 2008
                             No. 06-15563                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 95-06031-CR-DTKH

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,


                                  versus

CLINTON BURNS,


                                                         Defendant-Appellant.


                       ________________________

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

                            (February 1, 2008)


Before BIRCH, DUBINA and FAY, Circuit Judges.

PER CURIAM:
      Clinton Burns, a federal prisoner proceeding pro se, appeals the denial of his

motion for a reduction in sentence based on Amendment 484 to the Sentencing

Guidelines, filed pursuant to 18 U.S.C § 3582(c)(2). Burns argues that the district

court abused its discretion in denying his § 3582 motion because Amendment 484

is retroactive and, accordingly, should be applied to adjust his sentence.

Specifically, Burns argues that the district court erred in sentencing him based on a

finding that he was responsible for 61.4 grams of cocaine base (“crack cocaine”)

because there was no evidence to confirm the actual amount of cocaine as

separated from the cutting agent used to produce it. Accordingly, Burns asserts

that we should remand for resentencing in order to recalculate the drug quantity

attributable to his conduct, or to sentence him based on the Guidelines for powder

cocaine. Burns also argues that his trial counsel was ineffective. For the reasons

set forth more fully below, we affirm.

      In 1995, a federal grand jury indicted Burns and codefendants Tracy Topaz

Turner and Norman Robinson for one count of conspiracy to possess with intent to

distribute crack cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) (Count 1), and

two counts of possession with intent to distribute crack cocaine, in violation of 21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts 2 and 3). The government filed a

notice of prior felony drug convictions, indicating that Burns was previously



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convicted of several felony drug offenses including possession of marijuana,

possession of cocaine, delivery of cocaine, and delivery of cocaine within 1000

feet of a school, all in violation of Florida state law. The government asserted that

these convictions made Burns eligible for a sentencing enhancement, pursuant to

21 U.S.C. § 851.

      Following a jury trial, Burns was found guilty on all three counts. Based on

the § 851 enhancement, the district court sentenced Burns to life imprisonment as

to Count 1. As to Counts 2 and 3, the court sentenced Burns to 262 months’

imprisonment, to run concurrently with sentence in Count 1. We affirmed Burns’s

conviction and sentence. Burns subsequently filed the instant motion to reduce his

sentence, pursuant to 18 U.S.C. § 3582(c)(2), which the district court summarily

denied.

      As an initial matter, to the extent Burns argues that his trial counsel was

ineffective, because claims of ineffective-assistance-of-counsel are best presented

in a collateral attack via a 28 U.S.C. § 2255 motion, we decline to consider this

issue. See Massaro v. United States, 538 U.S. 500, 504-05, 508, 123 S.Ct. 1690,

155 L.Ed.2d 714 (2003).

      We review for an abuse of discretion the district court’s denial of a

§ 3582(c)(2) motion to reduce a sentence. United States v. White, 305 F.3d 1264,



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1267 (11th Cir. 2002) (per curiam) (citation omitted). Pursuant to § 3582(c)(2), a

district court may modify an imposed term of imprisonment “in 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.” 18 U.S.C. § 3582(c)(2). An amendment is retroactive for purposes

of § 3582(c)(2) only if it is listed in U.S.S.G. § 1B1.10(c). United States v.

Armstrong, 347 F.3d 905, 907 (11th Cir. 2003); U.S.S.G. § 1B1.10(a) and

comment. (n.1).

      Amendment 484 to the sentencing guidelines, which became effective on

November 1, 1993, provides, in pertinent part, that, for sentencing purposes, the

definition of “mixture or substance” as used in 21 U.S.C. § 841 and U.S.S.G.

§ 2D1.1 “does not include materials that must be separated from the controlled

substance before the controlled substance can be used.” U.S.S.G. App. C, Amend.

484. The Sentencing Commission went on to explain that the amendment

addresses cases where “a controlled substance [is] bonded to, or suspended in,

another substance (e.g., cocaine mixed with beeswax); however, the controlled

substance is not usable until it is separated from the other substance.” Id. Because

this amendment is listed in U.S.S.G. § 1B1.10(c), it is available retroactively and

may provide the basis for a reduced sentence under § 3582(c)(2). Armstrong, 347



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F.3d at 907; U.S.S.G. § 1B1.10(a) and (c), comment. (n.1).

      In the instant case, although Amendment 484 is retroactive, Burns’s

argument fails because the amendment does not apply to his case. Because Burns

was sentenced in 1995, Amendment 484, which became effective in November

1993, is not a “subsequent” amendment within the meaning of § 3582(c)(2). Thus,

the district court did not have jurisdiction to consider Burns’s motion. See United

States v. Stossel, 348 F.3d 1320, 1322 n.2 (11th Cir. 2003) (stating that a motion

could be addressed under § 3582(c) only if the appellant was arguing that his

sentence should be modified “based on a subsequent sentencing guideline

amendment”). Accordingly, the district court did not abuse its discretion in

denying Burns’s motion for a sentence reduction pursuant to 18 U.S.C.

§ 3582(c)(2).

      In light of the foregoing, the district court’s denial of Burns’s 18 U.S.C.

§ 3582(c)(2) motion for reduction of his sentence is

      AFFIRMED.




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