United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-3785
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Southern District of Iowa.
Mark Steven Ayala,                      *
                                        *      [UNPUBLISHED]
             Appellant.                 *
                                    __________

                             Submitted: October 19, 2009
                                Filed: November 4, 2009
                                 ___________

Before RILEY, HANSEN, and GRUENDER, Circuit Judges.
                            ___________

PER CURIAM.

       A grand jury charged Mark Steven Ayala (Ayala) with five separate counts in
a superseding indictment. Pursuant to the terms of a Fed. R. Crim. P. 11(e)(1)(C)1
plea agreement, Ayala pled guilty to (1) conspiracy to distribute methamphetamine,
cocaine, cocaine base, and marijuana, in violation of 21 U.S.C. § 846; and (2) use of
a person under the age of 18 to distribute methamphetamine, in violation of 21 U.S.C.
§ 861(a).



      1
       The current version of that rule is denominated Fed. R. Crim. P. 11(c)(1)(C).
      In the plea agreement, Ayala and the government agreed to a sentence of 360
months imprisonment. Ayala later sought a sentence reduction pursuant to 18 U.S.C.
§ 3582(c)(2) and Amendment 706 to the United States Sentencing Guidelines
(U.S.S.G. or Guidelines), which changed the drug quantity table set forth at U.S.S.G.
§ 2D1.1 by reducing the base offense levels for offenses involving cocaine base.
Ayala also sought a sentence reduction based upon “extraordinary and compelling
reasons” under 18 U.S.C. § 3582(c)(1)(A)(i). The district court2 denied Ayala’s
requested relief, and we affirm.

       Whether a district court had authority to modify a sentence under 18 U.S.C.
§ 3582(c) is a question of law we review de novo. See United States v. Tolliver, 

, 1065 (8th Cir. 2009) (citations omitted). Whether a district court’s
modification of a sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) is reviewed de
novo or for an abuse of discretion appears to be an open question in this circuit and
other circuits. We do not decide the review standard because § 3582(c)(1)(A)(i) was
not triggered here, a decision we review de novo.

       We conclude the district court properly denied Ayala’s requested relief under
18 U.S.C. § 3582(c)(2) because Ayala’s Guidelines range was calculated based upon
Ayala’s distribution of cocaine, marijuana, and methamphetamine, and not cocaine
base. Additionally, sentences based upon a binding Rule 11(c)(1)(C) plea agreement
cannot be altered pursuant to the Guidelines amendments reducing base offense levels
for crack cocaine offenses. See United States v. Scurlark, 

, 842 (8th Cir.
2009).

      The district court also properly denied Ayala’s request for a reduced sentence
under 18 U.S.C. § 3582(c)(1)(A)(i) because the Director of the Bureau of Prisons did


      2
      The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.

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not file a motion requesting relief for “extraordinary and compelling reasons.” See
United States v. Kelley, 

, 753 (8th Cir. 1992) (explaining “[t]he court
may modify a term of imprisonment upon motion by the Director of the Bureau of
Prisons after considering the factors set forth in [18 U.S.C. §] 3553(a) . . . if it finds
extraordinary and compelling reasons warrant a reduction”).

      We affirm the district court’s judgment.
                   ______________________________




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