                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                November 3, 2008
                               No. 08-11623                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                 D. C. Docket No. 05-00123-CR-ORL-18GJK

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

MICHAEL JOSEPH SMITH,

                                                            Defendant-Appellant.


                         ________________________

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

                              (November 3, 2008)

Before BARKETT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Michael Smith, a federal prisoner convicted of a crack cocaine offense,
appeals pro se the district court’s denial of his 18 U.S.C. § 3582 motion for

reduction of sentence based on an amendment to U.S.S.G. § 2D1.1 that lowered the

base offense levels applicable to crack cocaine offenses. Smith was convicted of

possession with intent to distribute 5 grams or more of crack cocaine, in violation

of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii), and possession with intent to distribute

50 grams or more of crack cocaine, in violation of § 841(a)(1) and (b)(1)(A)(iii).

Smith was subject to a 120-month statutory mandatory minimum sentence, based

on a prior felony drug conviction, making his guideline range 120 to 121 months’

imprisonment. Prior to sentencing, the government filed a motion, pursuant to

U.S.S.G. § 5K1.1, requesting the district court to depart from the mandatory

minimum sentence based on Smith’s substantial assistance, and the court granted

this motion and sentenced Smith to 60 months’ imprisonment.

      On appeal, Smith contends that, after applying a two-level reduction, his

amended guideline range was 120 months’ imprisonment, based on the statutory

mandatory minimum, which was lower than the original guideline range of 120 to

121 months’ imprisonment, and therefore, the guideline range had been lowered,

such that he met the eligibility requirement of both § 3582(c) and U.S.S.G.

§ 1B1.10. Smith also argues that: (1) he was entitled to a “comparable reduction”

in his amended guidelines sentence to reflect the original downward departure; (2)



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the Sentencing Commission’s “Analysis of the Impact of the Crack Amendment if

Made Retroactive” report that was issued on October 3, 2007, evidences the

Commission’s intent that Amendment 706 apply to those who had received

sentences below the statutory mandatory minimum due to substantial assistance;

(3) the mandatory minimum sentence was “dispensed with” upon the government’s

§ 5K1.1 motion; and (4) the ambiguity in § 1B1.10 invokes the rule of lenity,

which means that he should receive the benefit of the amendment.

      We 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, where the issue presented involves a legal

interpretation, review is de novo. United States v. Pringle, 350 F.3d 1172, 1178

(11th Cir. 2003). Although a district court generally cannot modify a term of

imprisonment once it has been imposed, an exception lies in § 3582(c)(2), where:

      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),
      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 [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.

18 U.S.C. § 3582(c)(2) (emphasis added). A reduction of a term of imprisonment

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is not “consistent with applicable policy statements issued by the Sentencing

Commission” – and is, therefore, not authorized under § 3582(c)(2) – if the

retroactive amendment does not have the effect of lowering the defendant’s

applicable guideline range. U.S.S.G. § 1B1.10(a)(2)(B). Pursuant to U.S.S.G.

§ 5G1.1(b), “[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) (emphasis added).

       Amendment 706, which reduced the offense levels in crack cocaine cases

calculated pursuant to § 2D1.1(c) by two levels, became effective November 1,

2007. See U.S.S.G. App. C, Amend. 706 (2007). The Amendment was made

retroactive as of March 3, 2007, by incorporation into U.S.S.G. § 1B1.10(c). See

U.S.S.G. App. C, Amend. 713 (Supp. May 1, 2008).1 Although the retroactive

effect of Amendment 706 allows a defendant whose guideline imprisonment range

was determined in accordance with the offense level calculations under § 2D1.1 to

seek a reduction in his sentence, a defendant whose original sentence ultimately

was based on something other than the offense level calculation under § 2D1.1 is

precluded from receiving a sentence reduction because the amendment does not



       1
        The March 1, 2008 Supplement has been superceded by the May 1, 2008 Supplement and,
when used with the 2007 Manual, constitutes the operative Guidelines Manual effective May 1,
2008. See U.S.S.G. Cover (Supp. May 1, 2008).

                                             4
have the effect of lowering the applicable guideline range. See U.S.S.G.

§ 1B1.10(a)(2)(B). This occurs where, as here, the defendant was sentenced to a

statutory mandatory minimum sentence. See U.S.S.G. § 1B1.10, comment.

(n.1(A)) (noting that defendant is not eligible for reduction, even if amendment is

listed in subsection (c), if “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).”); see also United States v. Black, 523 F.3d 892, 892-93 (8th Cir.

2008) (persuasive authority) (affirming the district court’s denial of § 3582 motion

because defendant was sentenced in accordance with the statutory mandatory

minimum sentence, and courts are not authorized to sentence below statutory

minimum sentences).

      Section 5K1.1 of the Sentencing Guidelines provides that a court may depart

from the Guidelines “[u]pon motion of the government stating that the defendant

has provided substantial assistance in the investigation or prosecution of another

person who has committed an offense.” The commentary elaborates that a

defendant’s substantial assistance “may justify a sentence below a statutorily

required minimum sentence.” U.S.S.G. § 5K1.1, comment. (n.1).

      On September 5, 2008, we issued our first published decision regarding the



                                          5
application of Amendment 706, in United States v. Moore, No. 08-11230, man. op.

(11th Cir. Sept. 5, 2008). Moore, one of five defendants in the consolidated appeal

from the district court’s denial of each defendant’s § 3582 motion, was originally

sentenced as a career offender under U.S.S.G. § 4B1.1. Id. at 4-5. Prior to his

original sentencing, however, the government filed a downward departure motion,

pursuant to § 5K1.1 and § 3553(a), based on Moore’s substantial assistance, and

the court granted the motion and sentenced Moore below the statutory minimum

sentence that applied as a result of his career offender status. Id. at 5. The district

court denied Moore’s § 3582 motion, and we affirmed, finding that, “[b]y its terms,

the statute applies to a defendant whose sentence was ‘based on’ a subsequently-

lowered ‘sentencing range[,]’” and because Moore’s sentence was based on the

guideline range applicable to career offenders under § 4B1.1, Amendment 706 did

not affect his base offense level and would not lower the sentencing range upon

which his sentence was based. Id. at 10.

      On appeal, Moore contended that he was eligible for a sentence reduction

because he received a downward departure, and thus, he was not sentenced within

the career offender guidelines. Id. at 14. We held that, because there was no

indication that the sentencing court based Moore’s sentence on the guideline range

that would have applied absent the career offender designation, there was no basis



                                            6
on which to conclude that the reduction in his base offense level lowered the

sentencing range relied upon by the court in determining his sentence. Id. at 17.

Accordingly, we held, “[w]here a retroactively applicable guideline amendment

reduces a defendant’s base offense level, but does not alter the sentencing range

upon which his or her sentence was based, § 3582(c)(2) does not authorize a

reduction in sentence.” Id. at 18.

      Because, despite the substantial assistance departure that was determined

after the applicable guideline range was calculated, Smith was sentenced “based

on” the applicable statutory mandatory minimum term of imprisonment – resulting

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

calculation under U.S.S.G. § 2D1.1 – he was precluded from receiving a sentence

reduction under § 3582. See Moore, No. 08-11230, man. op. at 10. Furthermore,

because Smith was not eligible for a sentence reduction, we do not need to address

his remaining arguments. Accordingly, we affirm.

      AFFIRMED.




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