                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 08-11295                ELEVENTH CIRCUIT
                           Non-Argument Calendar              MARCH 31, 2009
                         ________________________           THOMAS K. KAHN
                                                                 CLERK
                    D. C. Docket No. 04-00023-CR-CAR-5

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

LEON JACKSON,

                                                           Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Georgia
                       _________________________
                              (March 31, 2009)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Leon Jackson, a federal prisoner convicted of a crack cocaine offense,

appeals the district court’s denial of his motion to reduce his sentence under

Guidelines Amendment 706, filed pursuant to 18 U.S.C. § 3582(c)(2), and its
subsequent denial of his motion for reconsideration. On appeal, Jackson argues

that the 100-to-1 disparity between crack and powder cocaine sentences is

arbitrary, irrational, and an unconstitutional violation of his due process and equal

protection rights under the Fifth and Fourteenth Amendments.           After careful

review, we affirm.

         In a § 3582(c)(2) proceeding, we review de novo the district court’s legal

conclusions regarding the scope of its authority under the Sentencing Guidelines.

United States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008), cert. denied,

McFadden v. United States, 129 S.Ct. 965 (2009), cert. denied, No. 08-8554, 2009

WL 301854 (U.S. Mar. 9, 2009). We review the denial of a motion to reconsider

for an abuse of discretion. United States v. Simms, 385 F.3d 1347, 1356 (11th Cir.

2004).

         Section 3582(c)(2) of Title 18 forbids a court from modifying a term of

imprisonment once it has been imposed except “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 pursuant to 28 U.S.C.

994(o).” 18 U.S.C. § 3582(c)(2). In that case, a district court may reduce the term

of imprisonment after it considers the factors in 18 U.S.C. § 3553(a) to the extent

they are applicable, if the reduction is consistent with the applicable policy



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statements of the Sentencing Commission. 18 U.S.C. § 3582(c)(2). The applicable

policy statement provides that if a defendant’s guideline range has “subsequently

been lowered as a result of an amendment to the Guidelines Manual listed in

[U.S.S.G. § 1B1.10(c)], the court may reduce the defendant’s term of

imprisonment as provided by 18 U.S.C. § 3582(c)(2)” and “any such reduction in

the defendant’s term of imprisonment shall be consistent with this policy

statement.” U.S.S.G. § 1B1.10(a)(1).

      The commentary to U.S.S.G. § 1B1.10 instructs that a reduction under

§ 3582(c)(2) is not authorized when “an amendment . . . 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); see also Moore, 541 F.3d at 1328 (holding that,

while Amendment 706 was applicable to the defendants in question because it

reduced their base offense levels, a reduction was not authorized because the

amendment did not have the effect of lowering their applicable guideline ranges

because of the application of the career offender guideline).

      A term of imprisonment to the applicable statutory mandatory minimum,

resulting in a sentence that was ultimately based on something other than the



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offense level calculation under U.S.S.G. § 2D1.1, precludes a sentence reduction

under § 3582(c)(2). United States v. Williams, 549 F.3d 1337, 1342 (11th Cir.

2008). This is so even if a substantial assistance departure below this mandatory

minimum was granted. Id. The Supreme Court has held that, when determining to

what extent to vary from the guidelines based on a disagreement with the

crack/powder ratio, the district court remains “constrained by the mandatory

minimums Congress prescribed.” Kimbrough v. United States, 128 S. Ct. 558, 574

(2007).

      Amendment 706, which was effective on November 1, 2007, reduced the

base offense level for crack cocaine offenses by two levels. See U.S.S.G. App. C,

Amend. 706. Amendment 706 is listed in U.S.S.G. § 1B1.10(c), and therefore, it

applies retroactively. See U.S.S.G. § 1B1.10(c); U.S.S.G. App. C, Amend. 713;

United States v. Stratton, 519 F.3d 1305, 1307 (11th Cir. 2008) (noting that

Amendment 706 is retroactively applicable).

      The Guidelines provide:

      In determining whether, and to what extent, a reduction in the
      defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and
      this policy statement is warranted, the court shall determine the
      amended guideline range that would have been applicable to the
      defendant if the amendment(s) to the guidelines listed in subsection
      (c) had been in effect at the time the defendant was sentenced. In
      making such determination, the court shall substitute only the
      amendments listed in subsection (c) for the corresponding guideline

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      provisions that were applied when the defendant was sentenced and
      shall leave all other guideline application decisions unaffected.

U.S.S.G. § 1B1.10(b)(1). “Thus, a district court may not reconsider any of its

original sentencing determinations other than the provision subject to the

amendment.” United States v. Williams, __ F.3d __, No. 08-11361, manuscript op.

at 5 (11th Cir. Feb. 9, 2009).

      Moreover, we have held that § 3582(c)(2) does not permit the district to

consider the defendant’s sentence de novo and that “[a]ll original sentencing

determinations [must] remain unchanged with the sole exception of the guideline

range that has been amended since the original sentencing.”          United States v.

Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005). We have specifically held that

constitutional challenges to a defendant’s sentence are the sort of “extraneous”

issues that are not cognizable under § 3582(c)(2) and must be pursued through a

28 U.S.C. § 2255 motion to vacate. United States v. Bravo, 203 F.3d 778, 781-82

(11th Cir. 2000) (upholding a district court’s finding that it had no jurisdiction in a

§ 3582(c)(2) proceeding to consider the defendant’s claim that his sentence

constituted cruel and unusual punishment). Additionally, we have held that the

sentencing disparity between crack and powder cocaine offenses does not violate

equal protection. United States v. King, 972 F.2d 1259, 1260 (11th Cir. 1992).




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        As applied here, because we have specifically held that constitutional

challenges to a defendant’s sentence are the sort of “extraneous” issues that are not

cognizable under § 3582(c)(2), see Bravo, 203 F.3d at 781-82, the district court

correctly found that a § 3582(c)(2) resentencing hearing was not the proper forum

for Jackson’s constitutional arguments. For this reason, the district court did not

abuse its discretion when it denied Jackson’s motion for reconsideration. Simms,

385 F.3d at 1356. The district court also properly found that Jackson’s sentence

was ultimately based on something other than the offense level calculation under §

2D1.1 -- since he was sentenced to a statutory minimum mandatory sentence of

120 months of imprisonment -- thus precluding a sentence reduction under §

3582(c)(2), even in light of his substantial-assistance departure.       U.S.S.G. §

1B1.10, cmt. n.1(A); see also Williams, 549 F.3d at 1342; Moore, 541 F.3d at

1328.     Furthermore, we previously have rejected the argument that the

crack/powder cocaine sentencing disparity violates the Equal Protection Clause,

see King, 972 F.2d at 1260, and this is still the law after Kimbrough. Accordingly,

we affirm.

        AFFIRMED.




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