FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 FEBRUARY 1, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-12036

Non-Argument Calendar

________________________

D. C. Docket No. 95-06031-CR-KLR

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

TRACY TOPAZ TURNER, 

a.k.a. Tracy Thomas, 

a.k.a. Tony Brow, 

a.k.a. Tony H. Brown, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(February 1, 2008)

Before BIRCH, DUBINA and FAY, Circuit Judges.

PER CURIAM:
2

Tracy Topaz Turner, a federal prisoner proceeding pro se, appeals the denial

of his motion for a reduction in sentence based on Amendment 484 to the

Sentencing Guidelines, filed pursuant to 18 U.S.C § 3582(c)(2), and subsequent

motion for reconsideration. Turner argues that the district court abused its

discretion in denying his § 3582 motion and his motion for reconsideration because

Amendment 484 is retroactive and, accordingly, should be applied to adjust his

sentence. Specifically, Turner argues that the district court erred in sentencing him

based on a finding that he was responsible for 61.4 grams of cocaine base (“crack

cocaine”) because the drugs seized in the case were wet at the time they were

weighed and analyzed. Turner asserts that Amendment 484 dictates that water

weight must be excluded from the weight of usable crack cocaine attributable to

his conduct. Accordingly, Turner contends that we should remand for resentencing

in order to recalculate the drug quantity attributable to his conduct based on its dry

weight. For the reasons set forth more fully below, we affirm.

In 1995, a federal grand jury indicted Turner and codefendants Clinton

Burns and Norman Robinson for one count of conspiracy to possess with intent to

distribute crack cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and two

counts of possession with intent to distribute crack cocaine, in violation of 21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2. 
3

Following a jury trial, Turner was found guilty on all three counts. The

district court sentenced Turner to concurrent terms of 360 months’ imprisonment

as to each count. We affirmed Turner’s conviction and sentence. Turner

subsequently filed the instant motion to reduce his sentence, pursuant to 18 U.S.C.

§ 3582(c)(2), which the district court summarily denied. Turner then filed a

motion for reconsideration, styled as a Fed.R.Civ.P. 59(e) motion to alter or amend

judgment, which the district court also denied.

We review for abuse of discretion the district court’s denial of a § 3582(c)(2)

motion to reduce a sentence. United States v. White, 305 F.3d 1264, 1267 (11th

Cir. 2002) (per curiam) (citation omitted). Pursuant to § 3582(c)(2), a district court

may modify an imposed term of imprisonment “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.” 18 U.S.C.

§ 3582(c)(2). An amendment is retroactive for purposes of § 3582(c)(2) only if it

is listed in U.S.S.G. § 1B1.10(c). United States v. Armstrong, 347 F.3d 905, 907

(11th Cir. 2003); U.S.S.G. § 1B1.10(a) and comment. (n.1). 

Amendment 484 to the sentencing guidelines, which became effective on

November 1, 1993, provides, in pertinent part, that, for sentencing purposes, the

definition of “mixture or substance” as used in 21 U.S.C. § 841 and U.S.S.G.
4

§ 2D1.1 “does not include materials that must be separated from the controlled

substance before the controlled substance can be used.” U.S.S.G. App. C, Amend.

484. The Sentencing Commission went on to explain that the amendment

addresses cases where “a controlled substance [is] bonded to, or suspended in,

another substance (e.g., cocaine mixed with beeswax); however, the controlled

substance is not usable until it is separated from the other substance.” Id. Because

this amendment is listed in U.S.S.G. § 1B1.10(c), it is available retroactively and

may provide the basis for a reduced sentence under § 3582(c)(2). Armstrong, 347

F.3d at 907; U.S.S.G. § 1B1.10(a) and (c), comment. (n.1). 

In the instant case, although Amendment 484 is retroactive, Turner’s

argument fails because the amendment does not apply to his case. Because Turner

was sentenced in 1995, Amendment 484, which became effective in November

1993, is not a “subsequent” amendment within the meaning of § 3582(c)(2). Thus,

the district court did not have jurisdiction to consider Turner’s motion. See United

States v. Stossel, 348 F.3d 1320, 1322 n.2 (11th Cir. 2003) (stating that a motion

could be addressed under § 3582(c) only if the appellant was arguing that his

sentence should be modified “based on a subsequent sentencing guideline

amendment”). Accordingly, the district court did not abuse its discretion in

denying Turner’s motion for a sentence reduction pursuant to 18 U.S.C.
5

§ 3582(c)(2) or his motion for reconsideration.

In light of the foregoing, the district court’s denial of Turner’s 18 U.S.C.

§ 3582(c)(2) motion for reduction of his sentence is 

AFFIRMED.