[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                    FILED
                                                            U.S. COURT OF APPEALS
                                No. 08-16099                  ELEVENTH CIRCUIT
                                                                  JUNE 5, 2009
                            Non-Argument Calendar
                                                               THOMAS K. KAHN
                          ________________________
                                                                    CLERK

                      D. C. Docket No. 03-20947-CR-UUB

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                      versus

RICARDO VALLEJO,

                                                              Defendant-Appellant.


                          ________________________

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

                                  (June 5, 2009)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

     Ricardo Vallejo, through counsel, appeals the district court’s denial of his
motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2). Vallejo pled

guilty to one count of conspiracy to import one or more kilograms of heroin, in

violation of 21 U.S.C. § 963. The district court sentenced Vallejo to 108 months’

imprisonment, which we affirmed. See United States v. Vallejo, 127 F. App’x 473

(11th Cir. 2005) (table).

       In his section 3582(c)(2) motion before the district court, Vallejo, then

proceeding pro se, relied on Amendment 706 to the Sentencing Guidelines, which

retroactively reduced the base offense levels applicable to crack cocaine offenses.

In addition, Vallejo alluded to section 3582(c)(2) relief based on other unspecified

amendments to the Sentencing Guidelines related to mitigating-role reductions and

the computation of a defendant’s criminal history category. The United States of

America (“the Government”) responded, asserting that Amendment 706 did not

apply because Vallejo’s conviction did not involve crack cocaine. Then

represented by counsel, Vallejo replied, in which he conceded that Amendment

706 did not apply to him because he was not convicted of a crack cocaine offense.

Vallejo did not discuss or mention the other amendments, to which he had

previously alluded in his initial pro se motion. In its order denying relief, the

district court found only that Vallejo was not entitled to relief under Amendment

706.



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      On appeal, Vallejo argues that the district court, once it denied relief under

Amendment 706, erred by failing to consider whether he was also entitled to relief

under § 3582(c)(2) based on Amendments 668 and 709 to the Sentencing

Guidelines, the unspecified amendments alluded to in Vallejo’s initial pro se

motion. He contends that, because the Supreme Court’s decision in United States

v. Booker, 

, 

(2005) rendered the Guidelines advisory,

the district court possessed the authority to grant him relief under Amendments

668 and 709, despite the fact that the Sentencing Commission did not make these

amendments retroactive.

      “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) (per curiam) (citations omitted). 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 has subsequently 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.” 

is not consistent with the Commission’s policy

statements unless it is made pursuant to an amendment that the Commission has

made retroactive through its inclusion in U.S. Sentencing Guidelines § 1B1.10(c).



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See U.S. S ENTENCING G UIDELINES M ANUAL § 1B1.10(a)(1) and (a)(2)(A).

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

error. Assuming arguendo that Vallejo did not waive his argument regarding

Amendments 668 and 709 as well as Booker, precedent nonetheless forecloses the

same. We have held that, in § 3582(c)(2) proceedings, a district court’s discretion

is limited by the Sentencing Commission’s applicable policy statements. United

States v. Melvin, 

, 1190 (11th Cir. 2009) (per curiam) (“Concluding

that Booker and Kimbrough1 do not apply to § 3582(c)(2) proceedings, we hold

that a district court is bound by the limitations on its discretion imposed by §

3582(c)(2) and the applicable policy statements by the Sentencing Commission.”),

petition for cert. filed, (U.S. Feb. 10, 2009) (No. 08-8664). Because the

Sentencing Commission did not make Amendments 668 and 709 retroactive, a

district court would violate Commission policy by granting § 3582(c)(2) relief

based on these amendments. See U.S. S ENTENCING G UIDELINES M ANUAL §

1B1.10(a)(1) and (a)(2)(A). Because the district court lacked discretion to

contravene Commission policy in Vallejo’s § 3582(c)(2) proceeding, any error by

the district court in failing to address Amendments 668 and 709 was harmless. See

. Moreover, Booker neither provided a district court



      1
          Kimbrough v. United States, ___ U.S. ____, 

(2007).

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with an independent jurisdictional basis to reduce Vallejo’s sentence under §

3582(c)(2) nor granted a district court authority to disregard the policy statements

set forth in § 1B1.10(a). See United States v. Moreno, 

, 1220-21

(11th Cir. 2005) (per curiam); 

. Thus, Vallejo’s claim

that even non-retroactive amendments may serve as a basis for relief under §

3582(c)(2) lacks merit. Accordingly, we affirm.

      AFFIRMED.




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