[DO NOT PUBLISH]

                    IN THE UNITED STATES COURT OF APPEALS
                                                                         FILED
                           FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                    U.S.
                            ________________________ ELEVENTH CIRCUIT
                                                                    MAY 25, 2011
                                   No. 10-11879                      JOHN LEY
                               Non-Argument Calendar                   CLERK
                             ________________________

                     D.C. Docket No. 1:06-cr-00155-DHB-WLB-2

UNITED STATES OF AMERICA,

lllllllllllllllll                                                llllPlaintiff-Appellee,

                                        versus

MARVIN GRAY,

                                                 lllllllllllllllllllllDefendant-Appellant.

                            ________________________

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

                                    (May 25, 2011)

Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.

PER CURIAM:

         On November 7, 2007, Marvin Gray, having pled guilty to conspiracy to

distribute and to possess with intent to distribute over five grams of cocaine, in
violation of 21 U.S.C. § 846, was sentenced by the district court to a prison term

of 156 months. In March 2010, he sent a letter to the district court seeking a

reduction of his sentence under 18 U.S.C. § 3582(c)(2). The court treated the

letter as a motion seeking relief under Amendment 706 of the Sentencing

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

crack cocaine offenses, and denied it on the ground that Gray’s sentence was not

based on crack cocaine, but, rather, on 43 kilograms of cocaine powder. Gray now

appeals the ruling, contending that the offense for which he was sentenced

involved both crack cocaine and cocaine powder.

      Amendment 706 provided a two-level reduction in base offense levels for

certain crack cocaine offenses. U.S.S.G. App. C., amend. 706. Amendment 706

became effective on November 1, 2007. 

Commission listed

Amendment 706 in § 1B1.10(c) on March 3, 2008, therefore making the

amendment retroactively applicable. See U.S.S.G. App. C, amend. 713.

      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 includes

relief under § 3582(c)(2) which provides:

      [I]n the case of a defendant who has been sentenced to a term of

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      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
      [18 U.S.C. § 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). The Sentencing Commission policy statement applicable

to § 3582(c)(2) provides that if a defendant’s Guidelines sentencing range has

“subsequently been lowered as a result of an amendment to the Guidelines Manual

listed in [U.S.S.G. § 1B1.10(c)], the court may reduce the defendant’s term of

imprisonment as provided by 18 U.S.C. § 3582(c)(2).” U.S.S.G. §1B1.10(a)(1).

      Amendment 706 had no effect on Gray’s sentence. Gray pled guilty to

participation in a conspiracy involving specified amounts of cocaine powder and

crack cocaine, but the sentence the court imposed was based, as indicated above,

only on 43 kilograms of cocaine powder. Moreover, there is no merit to Gray’s

argument that his post-conviction conduct warranted a reduction in his sentence.

Because Gray was not entitled to resentencing under 18 U.S.C. § 3582(c)(2), the

district court did not have authority to consider the § 3553(a) factors. See United

States v. Webb, 

, 793 (11th Cir. 2009) (“Given that [defendant’s]

sentencing range did not change, the district court correctly recognized that it had



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no authority under § 3582(c)(2) to reduce his sentence and that it did not need to

examine the 18 U.S.C. § 3553(a) factors.”).

      AFFIRMED.




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