FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APR 2, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-12469

Non-Argument Calendar

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D. C. Docket No. 92-00170-CR-BH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RODNEY BLYTHE,

a.k.a. Hawk,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Alabama

_________________________

(April 2, 2009)

Before BIRCH, BLACK and FAY, Circuit Judges.

PER CURIAM:
Rodney Blythe, a federal prisoner proceeding pro se, appeals the district

court’s denial of his motion for a reduction of sentence, pursuant to 18 U.S.C.

§ 3582(c)(2), and the denial of his motion for reconsideration. Blythe was

convicted of drug offenses involving crack cocaine, and he filed his motion

pursuant to Amendment 706 to the sentencing guidelines, which lowered the base

offense levels applicable to crack cocaine. On appeal, Blythe argues the

sentencing court violated his right to due process of law by finding him responsible

for the amount of cocaine attributed to the conspiracy as a whole when that amount

was not reasonably foreseeable to him. Accordingly, Blythe claims the district

court erred in denying his § 3582 motion based on such an amount, and requests

resentencing to ascertain the correct amount of drugs for which he should be held

responsible. Blythe also argues that once a § 3582 motion is properly before the

district court, United States v. Booker, 125 S. Ct. 738 (2005), requires the

sentencing guidelines be re-applied as advisory, rather than mandatory. We review

each issue in turn, and affirm Blythe’s sentence.

I.

A district court may not modify a term of imprisonment once it has been

imposed except where expressly permitted by statute or by Fed. R. Crim. P. 35. 18

U.S.C. § 3582(c)(1)(B). One statutory exception to this general rule is relief under

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18 U.S.C. § 3582(c)(2), which provides:

[I]n 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 section 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). “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, in the § 3582(c)(2) context, “we review de

novo the district court’s legal conclusions regarding the scope of its authority under

the Sentencing Guidelines.” United States v. White, 305 F.3d 1264, 1267 (11th

Cir. 2002). We also review “de novo questions of statutory interpretation.” United

States v. Maupin, 520 F.3d 1304, 1306 (11th Cir. 2008).

A § 3582(c)(2) motion to reduce sentence does not provide the basis for 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). A district court should leave intact its

previous factual decisions from the sentencing hearing, including drug quantity

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calculations, when deciding whether to reduce a defendant’s sentence under

§ 3582. See United States v. Cothran, 106 F.3d 1560, 1563 (11th Cir. 1997).

Additionally, a reduction in the term of imprisonment is not consistent with

the guidelines policy statement, and therefore not authorized by § 3582(c)(2), if

“[a]n amendment listed in subsection (c) does not have the effect of lowering the

defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B); see also

United States v. Armstrong, 347 F.3d 905, 909 (11th Cir. 2003) (stating only

retroactively applicable amendments “that have the effect of lowering the

sentencing range upon which a sentence was based, may be considered for

reduction of a sentence under § 3582(c)(2)”).

On November 1, 2007, the Sentencing Commission promulgated

Amendment 706, which amended the Drug Quantity Table in U.S.S.G. § 2D1.1(c).

U.S.S.G. App. C, Amend. 706. The effect of Amendment 706 is to provide a twolevel reduction in base offense levels for certain crack-cocaine offenses. See id.

The Commission made this amendment retroactively applicable, effective as of

March 3, 2008. See U.S.S.G., App. C, Amend. 713. However, Amendment 706

did not lower base offense levels for offenses involving greater than 4.5 kilograms

of crack cocaine. See U.S.S.G., App. C, Amend. 706; see also United States v.

Jones, 548 F.3d 1366, 1369 (11th Cir. 2008).

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Blythe’s argument that he should not be held responsible for the sentencing

court’s drug quantity finding fails because the district court was not required to reexamine the sentencing court’s drug quantity determination in considering his

§ 3582(c)(2) motion. See Cothran, 106 F.3d at 1563. Accordingly, the district

court did not err in finding Blythe was responsible for over 4.5 kilograms of crack

cocaine based on the prior drug quantity finding to that effect at sentencing.

Moreover, because Blythe was responsible for over 4.5 kilograms of crack cocaine,

Amendment 706 did not change his applicable offense level under amended

U.S.S.G. § 2D1.1. See U.S.S.G., App. C., Amend. 706. Thus, because the

amendment did not lower Blythe’s guidelines range, the district court acted within

its discretion in denying his § 3582 motion. U.S.S.G. § 1B1.10(a)(2)(B); see also

Armstrong, 347 F.3d at 909.

II.

As noted above, we review de novo a district court’s legal conclusions

regarding the scope of its authority. White, 305 F.3d at 1267. Under Booker, a

district court must calculate the guidelines range and consult the § 3553(a) factors

to determine a reasonable sentence at a defendant’s original sentencing hearing.

See United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). However, also as

noted above, the district court may not conduct a de novo resentencing based on a

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§ 3582(c)(2) motion. U.S.S.G. § 1B1.10(a)(3); Moreno, 421 F.3d at 1220. More

specifically, Booker cannot serve as a basis for a § 3582 sentence reduction where

Amendment 706 does not apply because of the high quantity of crack cocaine

involved in the offense of conviction. See Jones, 548 F.3d at 1368-69.

Accordingly, the district court did not err in declining to consider the 18 U.S.C.

§ 3553 factors, in light of Booker, as a basis for reducing Blythe’s sentence under

§ 3582(c)(2) because Blythe was ineligible for relief under Amendment 706.

AFFIRMED.

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