FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Aug. 18, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-10029

Non-Argument Calendar

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D. C. Docket No. 91-00161-CR-SH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LARRY JONES,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(August 18, 2009)

Before DUBINA, Chief Judge, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
Appellant Larry Jones, a federal prisoner convicted of being a felon in

possession of a firearm, proceeding pro se, appeals the district court’s denial of his

motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). On appeal, he

argues that the district court abused its discretion in denying him a § 3582(c)(2)

sentence reduction pursuant to Amendment 651 to the United States Sentencing

Commission Guidelines Manual (“U.S.S.G.” or “Guidelines”), which clarified the

standard for imposing an upward departure based on the inadequacy of a

defendant’s criminal history category. Jones also argues the district court abused

its discretion by denying his motion for a sentence reduction because his original

sentence was arbitrary, the district court relied on prior convictions that may not

have complied with Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d

274 (1969), and Jones’s sentence exceeded the guideline imprisonment range.

Jones further argues that (1) his sentence amounts to cruel and unusual punishment

and gives rise to a presumption of vindictiveness; and (2) we have discretion under

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), to

grant the requested relief.

I.

We review a district court’s resolution of a motion under § 3582(c)(2) for

abuse of discretion and review issues of legal interpretation de novo. United States

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v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003); United States v. Pringle, 350 F.3d

1172, 1178 (11th Cir. 2003). We review the district court’s determination of the

scope of its authority under § 3582(c)(2) de novo. United States v. James, 548

F.3d 983, 984 (11th Cir. 2008).

A district court may modify a term of imprisonment in the case of a

defendant who was sentenced based on a sentencing range that subsequently has

been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). The

amendment to the Guidelines must be retroactively applicable, however, and only

amendments listed in U.S.S.G. § 1B1.10(c) qualify as retroactively applicable

amendments warranting § 3582(c)(2) relief. U.S.S.G. § 1B1.10(a)(1), (c); United

States v. Armstrong, 347 F.3d 905, 907–08 (11th Cir. 2003).

Amendment 651 elucidated, inter alia, the standard for imposing departures

pursuant to U.S.S.G. § 4A1.3 based on the inadequacy of a defendant’s criminal

history category. See U.S.S.G. App. C, Amend. 651, Reason for Amendment.

Amendment 651 is not listed in § 1B1.10(c), and, therefore, it is not a retroactively

applicable amendment that may be the basis for § 3582(c)(2) relief. See U.S.S.G. §

1B1.10(c) (listing the retroactively applicable amendments, which does not include

Amendment 651).

Proceedings under § 3582(c)(2) and § 1B1.10 “do not constitute a full

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resentencing of the defendant” or a de novo resentencing. U.S.S.G. §

1B1.10(a)(3); United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005).

Accordingly, § 3582(c)(2) does not “grant to the court jurisdiction to consider

extraneous resentencing issues.” United States v. Bravo, 203 F.3d 778, 782 (11th

Cir. 2000). Constitutional challenges to a defendant’s sentence are the sort of

“extraneous” issues that are not cognizable under § 3582(c)(2). Id. Moreover, the

Supreme Court’s decision in Booker does not provide an independent basis for

granting a sentence reduction in the context of § 3582(c)(2) proceedings because

Booker does not apply to § 3582(c)(2) proceedings. United States v. Melvin, 556

F.3d 1190, 1192 (11th Cir.), cert. denied, 129 S. Ct. 2382 (2009).

After reviewing the record and reading the parties’ briefs, we conclude that

Jones’s arguments are unavailing because Amendment 651 cannot provide the

basis for § 3582(c)(2) relief, and the district court lacked jurisdiction to consider

“extraneous resentencing issues” in the § 3582(c)(2) proceeding. Accordingly, we

affirm the district court’s order denying a sentence reduction.

AFFIRMED.

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