[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                    FILED
                                                            U.S. COURT OF APPEALS
                                No. 08-15104                  ELEVENTH CIRCUIT
                                                                  JULY 24, 2009
                            Non-Argument Calendar
                                                               THOMAS K. KAHN
                          ________________________
                                                                    CLERK

                   D. C. Docket No. 95-00317-CR-T-26TBM

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                      versus

STEVEN J. SMITH,
a.k.a. Steve,

                                                              Defendant-Appellant.


                          ________________________

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

                                  (July 24, 2009)

Before BIRCH, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

     Steven J. Smith appeals the district court’s denial of his motion for a
sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2). The district court

concluded that Smith was not eligible for a reduction because his sentence was

based on a statutory minimum term of imprisonment, such that Amendment 706,

which reduced base offense levels applicable to crack cocaine offenses, had no

effect on his guideline range. The court also declined to consider Smith’s

challenge to the validity of the government’s original 21 U.S.C. § 851(a) notice,

concluding that the issue was outside the scope of the § 3582(c)(2) proceeding.

      On appeal, Smith generally argues that the district court erred in finding he

was ineligible for a § 3582(c)(2) sentence reduction because the government’s

§ 851 information was invalid. First, Smith submits that the district court did not

have jurisdiction in his original sentencing hearing to impose the statutory

minimum because the § 851 information incorrectly provided that he was

“adjudged guilty and sentenced” for a juvenile drug charge in 1992, when in fact

he was not adjudged guilty, the adjudication was withheld, and he was not

sentenced or sanctioned as an adult. Second, Smith argues that even if the § 851

information was sufficient, his prior juvenile charge could not be used to trigger

the statutory minimum because the adjudication was withheld and he was not

convicted or sentenced as an adult. Finally, Smith argues that the court abused its

discretion in failing to consider the factors in 18 U.S.C. § 3553(a), including his



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post-conviction rehabilitation and the Guidelines’s disparate treatment of crack and

powder cocaine, and he submits that the Guidelines are advisory only after the

Supreme Court’s decisions in United States v. Booker, 

, 

(2005), and Kimbrough v. United States, 

, 

(2007).

      “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). 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 subsequently has been lowered by the Sentencing

Commission. 18 U.S.C. § 3582(c)(2). Any reduction, however, must be

“consistent with applicable policy statements issued by the Sentencing

Commission.” 

policy statements, found in U.S.S.G. § 1B1.10,

state that a sentence reduction is not authorized under § 3582(c)(2) if “an

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). The

commentary elaborates that a reduction is not authorized if an applicable

amendment does not lower a defendant’s applicable guideline range “because of

the operation of another guideline or statutory provision (e.g., a statutory

mandatory minimum term of imprisonment).” U.S.S.G. § 1B1.10, comment.



                                           3
(n.1(A)).

          The district court did not err in determining that Smith was ineligible for a

§ 3582(c)(2) reduction because his sentence was based on the statutory minimum

term of imprisonment, not his otherwise applicable range calculated under § 2D1.1.

See U.S.S.G. § 1B1.10, comment. (n.1(A)); United States v. Williams, 

, 1339-42 (11th Cir. 2008) (holding that the district court did not have the

authority to grant Williams a reduction because Amendment 706 had no effect on

his statutory minimum term of imprisonment, which had become his guideline

range, even when he received a downward departure under U.S.S.G. § 5K1.1).

Furthermore, the court properly declined to review the sufficiency of the

government’s § 851 information because it was outside the scope of the

§ 3582(c)(2) proceeding. See United States v. Bravo, 

, 781-82 (11th

Cir. 2000) (declining to address in a § 3582(c)(2) proceeding an Eighth

Amendment argument and noting that § 3582(c)(2) “does not grant to the court

jurisdiction to consider extraneous resentencing issues”).

      Upon review of the record and the parties’ briefs, we discern no reversible

error. Accordingly, we affirm.

      AFFIRMED. 1



      1
                Smith’s request for oral argument is denied.

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