[DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________               FILED
                                                           U.S. COURT OF APPEALS
                                  No. 08-13206               ELEVENTH CIRCUIT
                                                                 JUNE 9, 2009
                              Non-Argument Calendar
                                                              THOMAS K. KAHN
                            ________________________
                                                                   CLERK

                      D.C. Docket No. 95-06008-CR-DTKH

UNITED STATES OF AMERICA,


                                                                   Plaintiff–Appellee,

                                      versus

TORRENCE ALLEN,
a.k.a. Antonio P. Allen,

                                                             Defendant–Appellant.


                            ________________________

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

                                  (June 9, 2009)

Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

      Torrence Allen, who filed a 18 U.S.C. § 3582(c)(2) motion pro se but was
represented by appointed counsel during the resentencing proceedings, appeals the

district court’s denial of his § 3582(c)(2) motion for a reduction of his sentence

based on Amendment 706 to U.S.S.G. § 2D1.1, which lowered the base offense

levels applicable to crack cocaine offenses. Allen, who was convicted of

conspiracy to possess with intent to distribute crack cocaine and was attributed 848

grams of crack cocaine, argues that he is entitled to § 3582 relief because his

offense level was based on § 2D1.1, and that he was not sentenced as, or ever

determined to be a career offender under § 4B1.1. He also asserts that the statutory

maximum sentence for his offense was actually 240 months, and consequently, the

district court at his original sentencing exceeded its authority because it sentenced

him to 480 months’ imprisonment.

      We review de novo a district court’s conclusions about the scope of its legal

authority under 18 U.S.C. § 3582(c)(2). United States v. James, 

, 984

(11th Cir. 2008). Under § 3582(c)(2), a district court may modify a defendant’s

term of imprisonment where he “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). Any such reduction must also be consistent

with the Commission’s applicable policy statements, which similarly provide, inter

alia, that a sentencing reduction is not permitted where the retroactive amendment



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“does not have the effect of lowering the defendant’s applicable guideline range.”

U.S.S.G. § 1B1.10(a)(2)(B).III.

      A defendant whose original sentence ultimately was based on something

other than the offense level calculation under § 2D1.1, such as the career offender

guideline section of § 4B1.1, is precluded from receiving a sentence reduction

because the amendment does not have the effect of lowering the applicable

guideline range. See United States v. Moore, 

, 1327 (11th Cir.

2008), cert. denied, McFadden v. United States, 

(2009), and cert.

denied, (U.S. Mar. 9, 2009) (No. 08-8554); see also U.S.S.G. § 1B1.10, comment.

(n.1(A)) (stating that a reduction under § 3582(c)(2) is not authorized where “the

amendment . . . is applicable to the defendant but the amendment does not have the

effect of lowering the defendant’s applicable guideline range because of the

operation of another guideline or statutory provision”). Where the base offense

levels under § 2D1.1 play no role in the calculation of the guideline range, the

defendant is not entitled to § 3582 relief under Amendment 706. 

.

      In Moore, however, we did not address the applicability of Amendment 706

to a career offender who was originally sentenced based on the drug quantity

guideline. In a related context, we have suggested that Amendment 706 might



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apply to armed career criminals who were originally sentenced based on the drug

quantity guideline, because such individuals would have been “sentenced to a

‘range that has subsequently been lowered’ under 18 U.S.C. § 3582(c)(2).” 

n. 2. Consequently, if the offense level was based on § 2D1.1, the

defendant’s guideline range would be lowered, and Amendment 706 would apply.

See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(2)(B).

      Nevertheless, proceedings under § 3582 do not constitute a de novo

resentencing. United States v. Bravo, 

, 781 (11th Cir. 2000). Rather,

“all original sentencing determinations remain unchanged.” 

applying

an amendment under § 3582 “must recalculate the sentence under the amended

guidelines, first determining a new base level by substituting the amended

guideline range for the originally applied guideline range, and then using that new

base level to determine what ultimate sentence it would have imposed.” 

see also U.S.S.G. § 1B1.10(b).

      Facts contained in the PSI are “undisputed and deemed to have been

admitted, unless party objects to them before the sentencing court with specificity

and clarity.” United States v. Beckles, No. 07-15062, manu. op. at 19-20 (11th Cir.

Apr. 17, 2009). Indeed, a defendant’s failure to object to allegations of fact at

sentencing means that the defendant admitted those facts for sentencing purposes,



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and precludes any argument that there was error in them. 

      Regarding his eligibility for a sentence reduction, although the record is not

clear whether the court specifically found that Allen was a career offender, there is

no doubt that he is a career offender. Allen failed to object to his career offender

status below and conceded that his criminal history, which reveals that he had more

than two prior felony convictions and therefore qualified him as a career offender,

was correct. Consequently, we assume that the court at the original sentencing

applied the guidelines correctly and found that he was a career offender.

      Although Allen was not sentenced under the career offender provisions

because his offense level under the drug quantity guidelines, in § 2D1.1, was

higher than the offense level as a career offender, he nevertheless is not eligible for

a sentence reduction under Amendment 706. Because all original sentencing

determinations are left unchanged in a § 3582(c)(2) proceeding, the court was

required to determine Allen’s new base offense level under § 2D1.1, and compare

that number to his career offender offense level under § 4B1.1(b). In this respect,

the court did not err in determining that Amendment 706 would not have the effect

of reducing his sentencing range, as this approach is consistent with the policy

statement in § 1B1.10(b)(1).

      To the extent that Allen seeks to challenge his original sentence based on his



                                           5
argument that his statutory maximum sentence was 240 months, he may not do so

in a § 3582(c)(2) proceeding. Moreover, that argument fails because the

mandatory maximum sentence was life imprisonment due to his possession of over

500 grams of crack cocaine and his prior conviction for a felony drug offense. 21

U.S.C. § 841(b)(1)(A). Accordingly, we affirm.

AFFIRMED.




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