[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            JULY 20, 2009
                             No. 09-10943                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

               D.C. Docket No. 06-00530-CR-7-RDP-HGD

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

DAVID SMITH,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                              (July 20, 2009)

Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:
         David Smith, a federal prisoner serving a 156-month sentence following his

conviction on three felony counts, appeals the district court’s denial of his pro se

motion for a reduction of sentence. Smith believes that he is entitled to relief

pursuant to 18 U.S.C. § 3582(c)(2). In denying relief, the district court found that

Smith’s guideline range was calculated on the amount of powder cocaine

attributable to him and, therefore, Amendment 706 had no effect on his guideline

range. Moreover, the court noted that, because Smith was subject to a statutory

minimum term of life imprisonment, Amendment 706 did not reduce his guideline

range.

         On appeal, Smith acknowledges that Amendment 706 did not lower his

guideline range but asserts that because of “bad math” in the design of the

sentencing table, he should receive a reduction. He argues that part of his offense

level calculation included an upward departure because he also possessed crack

cocaine, although the district court calculated his guideline range based only on the

powder cocaine he possessed. Smith asserts that the guidelines are advisory under

United States v. Booker, 

(2005).

         Smith also contends that his presentence investigation report contained an

erroneous prior state conviction and that the district court should have ordered an

updated report to correct the record. He argues that the district court erred by



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concluding that the statutory language required that the guideline amendment

lower his guideline range in order for him to benefit. Smith claims that the district

court failed to calculate his applicable guideline range or consider the 18 U.S.C.

§ 3553(a) factors. He contends that even though he was subject to a mandatory

statutory minimum of life imprisonment, because the district court departed

downward at his original sentencing based on a substantial assistance motion,

Amendment 706 lowered his applicable guideline range.

      We conduct a de novo review of issues of legal interpretation in a

§ 3582(c)(2) context. United States v. Williams, 

, 1338–39 (11th

Cir. 2008). Amendment 706 provided a two-level reduction in base offense levels

for certain cocaine base offenses. U.S.S.G. App. C., Amend. 706 (Nov. 1, 2007).

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). However, defendants are ineligible for relief under certain situations.

      For example, when a defendant is subject to a statutory mandatory minimum

that replaces his guideline range, that defendant is not eligible for a sentence

reduction under Amendment 706. 

–42. This ineligibility

does not change if a court makes a downward departure below the statutory



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minimum when that departure is made pursuant to a U.S.S.G. § 5K1.1 or 18 U.S.C.

§ 3553(e) substantial assistance motion. 

      We have also held that Booker does not apply to § 3582(c)(2) proceedings.

United States v. Melvin, 

, 1193–94 (11th Cir.), cert. denied, 

(May 18, 2009).

      Smith was not entitled to a reduction in his sentence based on Amendment

706 because the district court calculated his guideline range based on powder

cocaine and not crack cocaine, and he was subject to a mandatory minimum term

of life imprisonment. Furthermore, Booker did not grant the district court

jurisdiction to resentence him, and the court also lacked jurisdiction to consider

any errors in his original sentencing.

      AFFIRMED.




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