FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEB 11, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-15019

Non-Argument Calendar

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D. C. Docket No. 07-80030-CR-DTKH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

XOCHITL ARITH FLORES,

a.k.a. Addie,

a.k.a. Adie,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(February 11, 2009)

Before BIRCH, DUBINA and HULL, Circuit Judges.

PER CURIAM:
Appellant Xochitl A. Flores appeals the district court’s grant of her pro se

motion to reduce her ten-year sentence under 18 U.S.C. § 3582(c)(2). The district

court found that, based on Amendment 706 to the Sentencing Guidelines, Flores

was entitled to a reduction in her sentence, but not below the ten-year statutory

minimum provided by 21 U.S.C. § 841(b)(1)(A). On appeal, Flores argues for the

first time that the district court erred by failing to re-determine her eligibility for

“safety-valve” relief pursuant to 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, based

on Amendment 709 to the Guidelines.

Generally, “[i]n a proceeding to modify a sentence under 18 U.S.C.

§ 3582(c)(2), we review de novo the district court’s legal conclusions regarding the

scope of its authority under the Sentencing Guidelines,” and we review for an

abuse of discretion “a district court’s decision whether to reduce a sentence

pursuant to § 3582(c)(2).” United States v. White, 305 F.3d 1264, 1267 (11th Cir.

2002). Arguments raised for the first time on appeal, however, are reviewed for

plain error. United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005). When

reviewing for plain error, we will not reverse the district court’s decision “unless

there is: (1) error, (2) that is plain, and (3) that affects substantial rights.” Id.

(quotation omitted). If all three conditions are met, we may exercise our discretion

to notice the error, but only if “the error seriously affects the fairness, integrity, or

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public reputation of judicial proceedings.” Id. (quotation omitted). “[W]here the

explicit language of a statute or rule does not specifically resolve an issue, there

can be no plain error where there is no precedent from the Supreme Court or this

Court directly resolving it.” United States v. Lejarde-Rada, 319 F.3d 1288, 1291

(11th Cir. 2003).

Under § 3582(c)(2), a district court has discretion to reduce the term of

imprisonment of an already incarcerated defendant if that defendant “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).” 18 U.S.C. § 3582(c)(2). In such a case, the district court may reduce

the defendant’s sentence, after considering applicable 18 U.S.C. § 3553(a) factors,

“if such a reduction is consistent with applicable policy statements issued by the

Sentencing Commission.” Id.

The Sentencing Commission’s policy statement on retroactive reduction of

sentences, U.S.S.G. § 1B1.10, provides that:

In a case in which a defendant is serving a term of imprisonment, and

the guideline range applicable to that defendant has subsequently been

lowered as a result of an amendment to the Guidelines Manual listed

in subsection (c) below, the court may reduce the defendant’s term of

imprisonment as provided by 18 U.S.C. § 3582(c)(2), . . . and any

such reduction in the defendant’s term of imprisonment shall be

consistent with this policy statement.

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U.S.S.G. § 1B1.10(a)(1) (2008). For a district court to have authority, pursuant to

§ 3582(c)(2), to reduce a sentence based on an amendment to the Guidelines, two

initial conditions must be met. First, the sentencing range must be lowered by the

amendment. See United States v. Pope, 58 F.3d 1567, 1568-69, 1572 (11th Cir.

1995) (ordering the district court to reinstate the original sentence on remand

because the sentencing range was not lowered by the amendment). Second, the

amendment must be listed as retroactively applicable in § 1B1.10(c). United States

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

Amendment 706 to the Sentencing Guidelines reduced base offense levels

for certain crack cocaine offenses, as reflected in the drug quantity table in

U.S.S.G. § 2D1.1(c). See U.S.S.G. App. C, Amend. 706 (2008). Amendment 706,

which is listed in U.S.S.G. § 1B1.10(c), was made retroactive by Amendment 713.

See U.S.S.G. App. C, Amend. 713; U.S.S.G. § 1B1.10(c) (2008).

Amendment 709 is not listed in U.S.S.G. § 1B1.10(c) and was not made

retroactive by any later amendment. See U.S.S.G. § 1B1.10(c); see generally

U.S.S.G. App. C. As a result of this amendment, sentences for “misdemeanor and

petty offenses” are generally counted for purposes of computing a defendant’s

criminal history, but sentences of probation for certain listed offenses are counted

only if the sentence was for “more than one year,” instead of “at least one year.”

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See U.S.S.G. App. C, Amend. 709; compare U.S.S.G. § 4A1.2(c)(1) (2006) with

U.S.S.G. § 4A1.2(c)(1) (2007).

A defendant convicted of an offense under 21 U.S.C. § 841(a) involving 50

grams or more of crack cocaine must be sentenced to a term of imprisonment of at

least 10 years. 21 U.S.C. § 841(b)(1)(A). Pursuant to 18 U.S.C. § 3553(f) and

U.S.S.G. § 5C1.2, known as the “safety valve,” a district court must impose a

sentence without regard to the statutory minimum sentence if the defendant meets

the criteria listed in subsections (1) through (5), which include having no more

than one criminal history point. 18 U.S.C. § 3553(f)(1)-(5); U.S.S.G. § 5C1.2.

The record here shows that the district court followed the proper procedure

for re-sentencing under § 3582(c)(2). In addition, the district court did not plainly

err in failing to apply Amendment 709 to re-determine Flores’s safety-valve

eligibility. Accordingly, we affirm Flores’s sentence.

AFFIRMED.

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