FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAR 24, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-13947

Non-Argument Calendar

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D. C. Docket No. 94-06003-CR-DTKH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN C. GEORGE,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(March 24, 2009)

Before DUBINA, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

Appellant John C. George appeals the district court’s denial of his pro se
motion to reduce his life sentence under 18 U.S.C. § 3582(c)(2). The district court

found that, given the quantity of crack cocaine for which George was responsible,

Amendment 706 to the Sentencing Guidelines did not lower his guideline range,

and, therefore, § 3582(c)(2) did not authorize a sentence reduction. On appeal,

George argues that the district court had the authority under § 3582(c) to reduce his

sentence, in light of a continuing crack/powder sentencing disparity and the

Supreme Court’s decision in Kimbrough v. United States, 552 U.S. ___, 128 S. Ct.

558, 169 L. Ed. 2d 481 (2007).

“In 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.” United States v. White, 305 F.3d

1264, 1267 (11th Cir. 2002). We review for an abuse of discretion a district

court’s decision whether to reduce a sentence pursuant to § 3582(c)(2). Id.

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). Before the

amendment, base offense level 38 applied to drug offenses involving 1.5 kilograms

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or more of crack cocaine. See, e.g., U.S.S.G. § 2D1.1(c)(1) (1995). As a result of

the amendment, base offense level 38 now applies to an offense involving 4.5

kilograms or more of crack cocaine. See U.S.S.G. § 2D1.1(c)(1) (2008).

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.” 18 U.S.C.

§ 3582(c)(2). In such a case, the 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.

U.S.S.G. § 1B1.10(a)(1) (2008). However, a reduction in the term of

imprisonment is not consistent with the Guidelines policy statement, and therefore

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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 that 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)”).

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). In addition, United States v. Booker, 543 U.S. 220,

125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), does not provide an independent basis

for reducing a sentence pursuant to a § 3582(c)(2) motion. Id. Section 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).

We recently decided United States v. Jones, No. 08-13298, manuscript op. at

2, 5 (11th Cir. November 19, 2008). In Jones, Amendment 706 did not lower the

defendant’s base offense level because he was responsible for more than 4.5

kilograms of crack cocaine. Id. at 4-5. We held that, despite Booker, a court

cannot reduce a sentence pursuant to § 3582(c)(2) unless the defendant had been

sentenced based on a sentencing range that had later been lowered by the

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Guidelines. Id. at 6. In another recent decision, we rejected a defendant’s

argument that Kimbrough v. United States, 552 U.S. __, 128 S. Ct. 558, provided

an independent basis for a sentence reduction under § 3582(c)(2). See United

States v. James, No. 08-12067, manuscript op. at 5-6 (11th Cir. November 12,

2008).

We conclude from the record here that the district court was not authorized

to reduce George’s sentence under § 3582(c)(2) because Amendment 706 did not

have the effect of lowering his guidelines range. The Supreme Court’s decision in

Kimbrough does not affect this conclusion. Therefore, we conclude that the district

court did not misinterpret its authority or abuse its discretion under § 3582(c)(2).

Accordingly, we affirm George’s sentence.

AFFIRMED.

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