FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Nov. 12, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-16608

Non-Argument Calendar

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D. C. Docket No. 02-00448-CR-T-26-MSS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

IBISISA MOLIELK SMITH,

a.k.a. O,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(November 12, 2009)

Before CARNES, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

Ibisisa Molielk Smith, who was convicted of conspiracy to possess with
intent to distribute 5 kilograms or more of cocaine and 50 grams or more of

cocaine base in violation of 21 U.S.C. § 846, appeals the district court’s denial of

his pro se 18 U.S.C. § 3582(c)(2) motion for a reduction of his sentence based on

Amendment 706 to the Sentencing Guidelines. Smith received a base offense level

of 38 because he admitted in both his plea agreement and the presentence

investigation report that he had purchased and redistributed more than 150

kilograms of powder cocaine and more than 1.5 kilograms of cocaine base. The

district court denied Smith’s § 3582(c)(2) motion, finding that Amendment 706 did

not reduce his base offense level because he was responsible for more than 150

kilograms of powder cocaine.

Smith argues that the PSI did not attribute more than 150 kilograms of

powder cocaine or more than 1.5 kilograms of cocaine base to him. He notes that

the district court did not make a finding on the record at his sentencing hearing

about the quantity of drugs attributable to him. Because the record is not clear

about whether he was sentenced based on a quantity of powder cocaine, a quantity

of cocaine base, or both, Smith argues that it is impossible for us to conduct a

meaningful appellate review. Finally, Smith asserts that there is not enough

evidence on the record to hold him accountable for more than 150 kilograms of

powder cocaine.

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We review “de novo a district court’s conclusions about the scope of its

legal authority under 18 U.S.C. § 3582(c)(2).” United States v. Jones, 548 F.3d

1366, 1368 (11th Cir. 2008). A district court may modify a term of imprisonment

when a defendant was 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). When the district court is determining whether to modify a

defendant’s sentence pursuant to § 3582(c)(2), “all original sentencing

determinations remain unchanged with the sole exception of the guideline range

that has been amended since the original sentencing.” United States v. Bravo, 203

F.3d 778, 781 (11th Cir. 2000).

Amendment 706 reduced base offense levels for crack cocaine offenses.

Jones, 548 F.3d at 1368. “Under Amendment 706, the guidelines now provide a

base offense level of 36 for defendants who are responsible for at least 1.5

kilograms but less than 4.5 kilograms of crack cocaine.” Id. at 1369. A base

offense level of 38 still applies, however, to defendants responsible for 150

kilograms or more of powder cocaine. See U.S.S.G. § 2D1.1(c)(1). So if a

defendant is responsible for at least 150 kilograms of powder cocaine, Amendment

706 does not reduce his applicable guideline range and he is ineligible for a

sentence reduction under § 3582(c)(2).

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Smith admitted in his plea agreement that he had bought and sold more than

150 kilograms of powder cocaine and more than 1.5 kilograms of cocaine base. He

also did not object to the PSI, which noted multiple times that Smith had bought

and sold more than 150 kilograms of powder cocaine and more than 1.5 kilograms

of cocaine base before holding him responsible for those amounts. Facts in the PSI

that are not objected to are considered admitted. See United States v. Shelton, 400

F.3d 1325, 1330 (11th Cir. 2005). Having admitted responsibility for more than

150 kilograms of powder cocaine twice, Smith cannot now argue that the record

does not support holding him to his word. The district court did not err in denying

Smith’s § 3582(c)(2) motion.

AFFIRMED.

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