[DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________
                                                         FILED
                             No. 09-11433       U.S. COURT OF APPEALS
                                                  ELEVENTH CIRCUIT
                         Non-Argument Calendar
                                                      JULY 8, 2010
                       ________________________
                                                       JOHN LEY
                                                        CLERK
                     D. C. Docket No. 91-00176-CR-4


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

JERMAINE GRAHAM,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                     _________________________

                               (July 8, 2010)

Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.
PER CURIAM:



      Jermaine Graham, a pro se federal prisoner convicted of a crack cocaine

offense, appeals the denial of his 18 U.S.C. § 3582(c)(2) motion for a reduced

sentence based on Amendment 706 to the Sentencing Guidelines. No reversible

error has been shown; we affirm.

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

defendant who was sentenced to a term of imprisonment based on a sentencing

range that later has been lowered by the Sentencing Commission. 18 U.S.C. §

3582(c)(2). But a reduction of a term of imprisonment is unauthorized under

section 3582(c)(2) if the retroactive amendment “does not have the effect of

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

      Amendment 706 retroactively reduced by two the base offense levels in

crack cocaine sentences calculated pursuant to the drug quantity table, U.S.S.G. §

2D1.1(c). U.S.S.G. App. C, Amend. 713 (Supp. 1 May 2008). Whether a sentence

reduction is warranted under Amendment 706 is driven by drug quantity: if a

defendant is responsible for at least 4.5 kilograms of crack cocaine, Amendment

706 does not reduce his applicable guidelines range; and he is ineligible for a

sentence reduction under section 3582(c)(2). United States v. Jones, 

1366, 1369 (11th Cir. 2008), cert. denied, 

(2009) (explaining that

“a base offense level of 38 still applies to defendants responsible for 4.5 kilograms

or more” of crack cocaine). At his original sentencing, Graham was held

accountable for 5 kilograms of crack cocaine. Therefore, Graham was responsible

for more than 4.5 kilograms of crack cocaine; Amendment 706 did not apply to

him; and the district court lacked authority to reduce his sentence. See 

appears that the district court believed Amendment 706 did apply to

Graham: the court reduced Graham’s base offense level from 40 to 38 but, after

considering the 18 U.S.C. § 3553(a) sentencing factors, declined to grant Graham a

sentence reduction because, in part, Graham had shown no remorse for his acts.

On appeal, Graham argues that the district court abused its discretion in concluding

that he showed no remorse for his acts. Because the district court lacked authority

to grant a reduction under Amendment 706, it was error for the district court to

undertake an analysis of the sentencing factors. See United States v. Bravo, 

, 780-81 (11th Cir. 2000) (describing the two-step process the district

court undertakes after it has determined that a retroactive amendment lowers a

defendant’s guidelines range and that, under the second step, the court must

consider the sentencing factors in section 3553(a) and determine whether, in its

discretion, it will reduce a defendant’s sentence).



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       But the error was harmless because the outcome of the section 3582

proceeding would not change absent the error; and Graham’s substantial rights

were not affected. See United States v. Olano, 

, 1778 (1993) (for an

error to affect substantial rights, it “must have affected the outcome of the district

court proceedings”). Because Graham was unentitled to a sentence reduction

under Amendment 706 based on the drug quantity for which he was accountable,

we affirm the district court’s denial of his section 3582(c)(2) motion. See United

States v. Mejia, 

, 1035 (11th Cir. 1996) (we may affirm on any

ground supported by the record).1

       AFFIRMED.2




       1
         We also reject Graham’s argument that he had a Sixth Amendment right to counsel in
his section 3582(c)(2) proceeding. See United States v. Webb, 

, 794-95 (11th Cir.
2009) (concluding that there is no constitutional right to counsel in a section 3582(c)(2)
proceeding).
       2
        In his initial brief, Graham raised claims about the disparity between crack and powder
cocaine and his due process rights. But in his reply brief, he concedes that these claims are
without merit. Thus, he has abandoned them.

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