                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               JAN 05, 2009
                               No. 08-12678                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                  D. C. Docket No. 04-00211-CR-T-23-MSS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

JAMES ALFONSO HENRY,
a.k.a. Pooky,

                                                           Defendant-Appellant.


                         ________________________

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

                               (January 5, 2009)

Before BIRCH, HULL and WILSON, Circuit Judges.

PER CURIAM:

     James Alfonso Henry appeals the district court’s order denying his 18
U.S.C. § 3582(c)(2) motion for a reduction in sentence.

                                             I.

         Henry first argues that the district court erred by not reducing his sentence

below the 120 month statutory minimum. In a case involving 18 U.S.C. §

3582(c)(2), we review a district court’s conclusions about the scope of its legal

authority de novo. United States v. Moore, 541 F.3d 1323, 1326 (11th Cir.

2008)(citing United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002) (per

curiam)).      Section 3582(c)(2) authorizes a district court to reduce the sentence

“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). Amendment 706 to the Sentencing

Guidelines reduced the base offense level for some crack cocaine offenses by two

levels. See U.S. SENTENCING GUIDELINES MANUAL App. C, amend. 706 (2007).

Amendment 713 made Amendment 706 retroactive effective March 3, 2008. See

U.S. SENTENCING GUIDELINES MANUAL App. C, amend. 713 (Supp. May 1,

2008).

         Section 3582(c)(2) also requires that any sentence reduction be “consistent

with applicable policy statements issued by the Sentencing Commission.” Section

1B1.10(a)(2)(B) of the Sentencing Guidelines states that a sentence reduction is not



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authorized if the relevant amendment “does not have the effect of lowering the

defendant’s applicable guideline range.” The application note for this section

provides that an amendment does not have the effect of lowering the defendant’s

guideline range if the defendant was originally sentenced to a statutory minimum

term of imprisonment. U.S. SENTENCING GUIDELINES MANUAL § 1B1.10, cmt.

n.1(A) (Supp. May 1, 2008). The Supreme Court has also held that district courts

remain “constrained by the mandatory minimums” in 21 U.S.C. § 841. Kimbrough

v. United States, 552 U.S. ___, 128 S. Ct. 558, 574, 169 L. Ed. 2d 481 (2007).

      Henry was originally sentenced to a statutory mandatory minimum sentence

of 120 months in prison. Therefore, the district court did not err in ruling that

Henry’s guideline range was not reduced and that he was not eligible for relief

under § 3582(c)(2).

                                           II.

      Henry next argues, for the first time on appeal, that treating prisoners who,

like himself, received a mandatory minimum sentence differently from those who

do not, by declaring only the latter eligible for § 3582(c)(2) relief, violates the

equal protection component of the due process clause of the Fifth Amendment.

Arguments raised for the first time on appeal are reviewed for plain error. United

States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005).



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      A § 3582(c)(2) proceeding does not constitute “a full de novo resentencing.”

United States v. Cothran, 106 F.3d 1560, 1562 (11th Cir. 1997). We have

previously held that constitutional claims are “extraneous resentencing issues” that

a court cannot address in a context of a § 3582(c)(2) proceeding. United States v.

Bravo, 203 F.3d 778, 782 (11th Cir. 2000). Because a district court may not

consider constitutional issues during a § 3582(c)(2) proceeding, the district court

did not plainly err by not considering, sua sponte, Henry’s equal protection

challenge. A defendant is entitled to raise constitutional challenges to a sentence

by making a collateral attack under 28 U.S.C. § 2255. Id.

             Finding no reversible error with regard to Henry’s sentence, we

affirm.

      AFFIRMED.




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