[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                          NOVEMBER 2, 2009
                             No. 09-10593                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                    D. C. Docket No. 99-00432-CR-PAS

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ALFREDO MEZA,
Digno Mesa-Arana,

                                                         Defendant-Appellant.


                       ________________________

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

                            (November 2, 2009)

Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.

PER CURIAM:
      Alfredo Meza, proceeding pro se, appeals the district court’s order denying

his motion to reconsider the denial of his motion to reduce sentence, filed pursuant

to 18 U.S.C. § 3582(c)(2) and Amendment 668. For the reasons set forth below,

we affirm.

                                          I.

      In 1999, a federal grand jury charged Meza with conspiracy to possess with

intent to distribute cocaine, in violation of 46 U.S.C. § 1903(j); and possession

with intent to distribute cocaine, in violation of 46 U.S.C. § 1903(a) and 18 U.S.C.

§ 2. A jury found Meza guilty of both counts.

      According to the presentence investigation report (“PSI”), Meza was

accountable for 4,609 kilograms of cocaine, and his base offense level was set at

38, pursuant to U.S.S.G. §§ 2D1.1(a)(3) and (c)(1). Meza’s total offense level was

42. His total offense level of 42 combined with criminal history category I to yield

a guideline imprisonment range of 360 months to life. The district court adopted

the factual findings and guideline calculations contained in the PSI and sentenced

Meza to 360 months’ imprisonment, followed by 5 years of supervised release.

Meza appealed his convictions and sentence and we affirmed. See United States v.

Rincon-Hernandez, 32 Fed.Appx. 533 (11th Cir. 2002).

      In July 2008, Meza filed a pro se motion to reduce his sentence, pursuant to



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18 U.S.C. § 3582(c)(2), arguing that Amendment 668 reduced his base offense

level from 38 to 30. Meza also argued that the district court should resentence him

under an advisory guideline scheme, pursuant to United States v. Booker, 

, 

, 

(2005). The district court denied Meza’s

motion, stating that Meza based his motion on Amendment 706. It found that

Amendment 706 did not apply to Meza, because the two counts of which he was

convicted involved powder cocaine rather than crack cocaine. Meza filed a motion

to reconsider, noting that his § 3582(c)(2) motion was based on Amendment 668,

rather than Amendment 706. He acknowledged that Amendment 668 was not

listed in the Guidelines as a retroactive amendment, but asked the court to apply it

retroactively because it was a clarifying amendment. The district court denied

Meza’s motion for reconsideration and Meza appealed. Meza’s notice of appeal

stated that he wished to appeal only the district court’s order denying his motion

for reconsideration.

                                          II.

      We review for abuse of discretion the denial of a motion to reconsider.

United States v. Simms, 

, 1356 (11th Cir. 2004). We review de

novo a district court’s conclusions regarding the scope of its legal authority under

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

, 984 (11th Cir.



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2008). A district court may modify a term of imprisonment in the case of a

defendant who was sentenced 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.” 

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 § 1B1.10(c). See

U.S.S.G. §§ 1B1.10(a)(1) and (a)(2)(A).

                                          III.

      Amendment 668 is not listed in § 1B1.10(c) as a retroactive amendment;

therefore, a district court would violate Commission policy by granting a

§ 3582(c)(2) sentence reduction based on this amendment. See U.S.S.G. §§

1B1.10(a)(1), (a)(2)(A), and (c). Furthermore, even if Amendment 668 was

considered to be a clarifying amendment, clarifying amendments may be applied

retroactively only on direct appeal of a sentence or under a 28 U.S.C. § 2255

motion to vacate sentence. See United States v. Armstrong, 

, 908-09

(11th Cir. 2003) (determining that classification as a clarifying amendment “bears

no relevance to determining retroactivity under § 3582(c)(2)”). Although the

district court, in the denial of the motion to reconsider, did not address Meza’s



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argument that his § 3582(c)(2) was based on Amendment 668 rather than

Amendment 706, any failure to address Amendment 668 was harmless, because

the court lacked discretion to contravene Commission policy and grant a

§ 3582(c)(2) reduction. See United States v. Melvin, 

, 1192 (11th

Cir. 2009) (holding that “Booker . . . do[es] not prohibit the limitations on a

judge’s discretion . . . imposed by § 3582(c)(2) and the applicable policy

statement[s]”). Finally, Booker did not grant the district court authority to

disregard the policy statements set forth in § 1B1.10(a). See 

Booker does not apply at resentencing proceedings under § 3582(c)(2)).

Accordingly, Meza’s claim that Amendment 668 may serve as a basis for relief

under § 3582(c)(2) lacks merit and we affirm the denial of Meza’s motion to

reconsider.

      AFFIRMED.




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