FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 28, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-12930

Non-Argument Calendar

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D. C. Docket No. 91-00301-CR-T-17-MAP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARLON MCNEALY,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(September 28, 2009)

Before BIRCH, BLACK and HULL, Circuit Judges.

PER CURIAM:
Marlon McNealy appeals the district court’s denial of his motion for a

reduced sentence, filed pursuant to 18 U.S.C. § 3582(c)(2) and Amendments 505

and 706 to the Sentencing Guidelines. McNealy was originally sentenced pursuant

to a statutory mandatory minimum of life imprisonment. McNealy appealed his

convictions and sentences and this Court affirmed. United States v. Brazel, 102

F.3d 1120, 1164 (11th Cir. 1997).

McNealy asserts the district court erred by denying his § 3582(c)(2) motion

because the mandatory minimum, pursuant to 21 U.S.C. § 851, was inapplicable.

He contends that, because his prior offenses were juvenile offenses, § 851 should

not have applied to give him a mandatory life sentence. Citing Harris v. United

States, 149 F.3d 1304, 1305 (11th Cir. 1998), McNealy asserts the applicability of

a § 851 notice is jurisdictional and can be raised at anytime, including a

§ 3582(c)(2) proceeding.

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

§ 3582(c)(2) for abuse of discretion and its conclusions regarding the scope of its

legal authority de novo. United States v. Williams, 549 F.3d 1337, 1338-39 (11th

Cir. 2008). A district court may modify a term of imprisonment in the case of a

defendant who was sentenced to a term of imprisonment based on a Guidelines

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range that has been lowered subsequently by the Sentencing Commission. 18

U.S.C. § 3582(c)(2).

Because a sentencing adjustment pursuant to § 3582(c)(2) does not

constitute a de novo resentencing, “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). Indeed, § 3582(c)(2) does not give the district court “jurisdiction to

consider extraneous resentencing issues.” Id. at 782. In Harris, we held that a

defendant could raise a jurisdictional challenge to the application of § 851 in a 28

U.S.C. § 2255 motion to vacate even though he failed to object at trial or on direct

appeal. 149 F.3d at 1307-09.

Because McNealy’s sentence was based upon the applicable statutory

mandatory minimum of life imprisonment rather than his original Guidelines

range, he was ineligible for a § 3582(c)(2) reduction based upon Amendment 706

or Amendment 505. See Williams, 549 F.3d at 1342 (“[A] defendant whose

original sentencing range was based on something other than § 2D1.1[, such as the

application of a statutory mandatory minimum term of imprisonment,] is precluded

from receiving a sentence reduction, since the amendment[s] would not lower his

applicable guidelines range.”). McNealy is attempting to challenge an extraneous

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sentencing issue, namely, the application of § 851, which led to his mandatory life

sentence. However, the correct avenue for challenging original sentencing

determinations is either on direct appeal or in a § 2255 motion to vacate.

McNealy’s reliance on Harris is inapposite because Harris involved a § 2255

motion to vacate which allows for jurisdictional challenges, whereas § 3582(c)(2)

is limited to determining whether a defendant was sentenced based on a Guidelines

range that has been amended since his original sentencing. See Harris, 149 F.3d at

1307-09. Accordingly, we affirm the district court’s denial of McNealy’s

§ 3582(c)(2) motion.

AFFIRMED.

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