                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                             NOVEMBER 26, 2007
                               No. 06-14956                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                      D. C. Docket No. 90-06036-CR-JAG

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

                                     versus

GABRIEL ALVARO SCAFF-MARTINEZ,


                                                     Defendant-Appellant.


                         ________________________

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

                              (November 26, 2007)

Before TJOFLAT, BLACK and WILSON, Circuit Judges.

PER CURIAM:

     Gabriel Alvaro Scaff-Martinez appeals pro se the district court’s order
denying his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). In

1991, Scaff-Martinez was sentenced to prison for 295 months, stemming from his

conviction for intent and conspiracy to possess and distribute 182 kilograms of

cocaine. On this appeal, Scaff-Martinez primarily argues that United States

Sentencing Guidelines Amendment 484 applies to his sentence because the crate of

cocaine used in the sting that resulted in his arrest contained mostly sham cocaine,

material that would have needed to be separated before the real cocaine could be

used. He also argues that this case should be remanded to a different judge.

      We review a district court’s decision whether to reduce a sentence pursuant

to 18 U.S.C. § 3582(c)(2) for abuse of discretion. United States v. Moreno, 421

F.3d 1217, 1219 (11th Cir. 2005) (per curiam) (citing United States v. Brown, 332

F.3d 1341, 1343 (11th Cir. 2003)).

      A district court generally “may not modify a term of imprisonment once it

has been imposed.” 18 U.S.C. § 3582(c). There are exceptions to this rule,

however, including the following:

      [when a defendant] 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 . . . the court may reduce the term of
      imprisonment, after considering the factors set forth in [18 U.S.C. §
      3553(a)] to the extent that they are applicable, if such a reduction is
      consistent with applicable policy statements issued by the Sentencing
      Commission.

                                          2
18 U.S.C. § 3582(c)(2). The sentencing guidelines list the amendments that apply

retroactively and can therefore serve as the basis of a § 3582(c)(2) motion.

U.S.S.G. § 1B1.10(a), (c); see United States v. Armstrong, 347 F.3d 905, 907 (11th

Cir. 2003) (noting that “for a sentence to be reduced retroactively under

§ 3582(c)(2), a court must determine whether there has been an amendment to the

Sentencing Guidelines that has lowered the guideline range applicable to that

sentence and is listed under § 1B1.10(c)”). Amendment 484 is included on the list

of retroactive amendments. U.S.S.G. § 1B1.10(c).

      Amendment 484 amended the commentary to U.S.S.G. § 2D1.1 to include

the following application note, in relevant part:

      Mixture or substance does not include materials that must be
      separated from the controlled substance before the controlled
      substance can be used. Examples of such materials include the
      fiberglass in a cocaine/fiberglass bonded suitcase, beeswax in a
      cocaine/beeswax statue, and waste water from an illicit laboratory
      used to manufacture a controlled substance.

U.S.S.G. § 2D1.1, cmt. n.1. Scaff-Martinez argues that this application note

should apply retroactively to his sentence because out of the 182 kilograms of

“cocaine” used in the sting that resulted in his arrest, only 9 kilograms consisted of

real cocaine; the remaining 173 kilograms consisted of sham cocaine, which he

argues is a “material[] that must be separated from the controlled substance before



                                           3
the controlled substance can be used.”

       In this case, evidence at trial showed that approximately 182 kilograms of

cocaine was seized during the investigation of the conspiracy that included

Scaff-Martinez. Then, the evidence shows, Scaff-Martinez agreed to purchase that

same amount of cocaine from the informant. Therefore, Scaff-Martinez was

properly sentenced based on all 182 kilograms of cocaine. See United States v.

Taffe, 36 F.3d 1047, 1050 (11th Cir. 1994) (concluding that all of the cocaine the

defendants intended to steal was properly included in the sentencing calculation on

conspiracy convictions, even though they only actually stole a portion of the

cocaine before authorities intervened); U.S.S.G. § 2D1.1, cmt. n.12.1 Moreover,

we previously affirmed Scaff-Martinez’s convictions and sentences based on this

drug amount.

       Accordingly, the only possible inquiry regarding Amendment 484 in this

case is whether the 182 kilograms of cocaine seized during the investigation, and

intended to be purchased by Scaff-Martinez, included another substance that had to

be separated before the cocaine could be used. At trial, the testimony suggested


       1
         “In an offense involving an agreement to sell a controlled substance, the agreed-upon
quantity of the controlled substance shall be used to determine the offense level unless the sale is
completed and the amount delivered more accurately reflects the scale of the offense . . . in a
reverse sting, the agreed-upon quantity of the controlled substance would more accurately reflect
the scale of the offense because the amount actually delivered is controlled by the government,
not by the defendant.” U.S.S.G. § 2D1.1, cmt. n.12 (emphasis added).

                                                 4
that the bags contained only cocaine. Scaff-Martinez does not allege otherwise;

rather, his arguments focus on the sealed crate used during the sting that apparently

contained only 9 kilograms of cocaine and 173 kilograms of flour or sham cocaine.

The contents of the crate at that stage were irrelevant, however, as he was charged

with intent and conspiracy resulting from his agreement to purchase 182 kilograms

of real cocaine; he was not charged with actually possessing the cocaine used in the

sting.2

          Finding that Amendment 484 has no effect on Scaff-Martinez’s sentence, the

district court then considered the factors set forth in 18 U.S.C. § 3553(a) and

properly found no basis with which to reduce his sentence.

          Because we hold that the district court committed no error, let alone an

abused its discretion, there is no need for us to address Scaff-Martinez’s request

that we remand this case to a different district judge.

          AFFIRMED.




          2
         Scaff-Martinez’s reliance on United States v. Jackson, 115 F.3d 843 (11th Cir. 1997), is
misplaced. In that case, the defendant was found in actual possession of a substance containing
approximately 1000 grams of sugar and 10 grams, or 1%, of cocaine, and was erroneously
sentenced based on the entire weight of a package. Jackson, 115 F.3d at 844–45. Scaff-
Martinez, on the other hand, was sentenced for conspiring and intending to possess and
distribute 182 kilograms of what he believed to be real cocaine.


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