[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                    FILED
                                                            U.S. COURT OF APPEALS
                                No. 09-13425                  ELEVENTH CIRCUIT
                                                               DECEMBER 10, 2009
                            Non-Argument Calendar
                                                               THOMAS K. KAHN
                          ________________________
                                                                    CLERK

                     D. C. Docket No. 99-00077-CR-3-LAC

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                      versus

TYRELL PLAIR,

                                                              Defendant-Appellant.


                          ________________________

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

                              (December 10, 2009)

Before CARNES, HULL and MARCUS, Circuit Judges.

PER CURIAM:

     Tyrell Plair, a federal prisoner convicted of a crack cocaine offense, appeals
the district court’s denial of his pro se 18 U.S.C. § 3582(c)(2) motion for a

sentence reduction. After review, we affirm.1

       Under § 3582(c)(2), may modify a defendant’s term of imprisonment if the

defendant’s sentence was “based on a sentencing range that has subsequently been

lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o) . . . .” 18

U.S.C. § 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(2). However, “[w]here a

retroactively applicable guideline amendment reduces a defendant’s base offense

level, but does not alter the sentencing range upon which his or her sentence was

based, § 3582(c)(2) does not authorize a reduction in sentence.” 

; see also U.S.S.G. § 1B1.10(a)(2)(B). A reduction is not authorized if the

amendment does not lower a defendant’s applicable guidelines 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 cmt. n.1(A).

       Here, Plair’s § 3582(c)(2) motion is based on Amendment 706 to the

Sentencing Guidelines, which reduced the base offense levels in U.S.S.G.

§ 2D1.1(c) applicable to most crack cocaine offenses. However, at his original

sentencing, Plair was subject to a statutory mandatory minimum term of twenty


       1
        “In a § 3582(c)(2) proceeding, we review de novo the district court’s legal conclusions
regarding the scope of its authority under the Sentencing Guidelines.” United States v. Moore,

, 1326 (11th Cir. 2008) (quotation marks omitted), cert. denied, 

(2009).

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years’ imprisonment, pursuant to 21 U.S.C. § 841(b)(1)(A), in light of his prior

felony drug conviction. Thus, Plair’s sentencing range was not based on the

amount of crack cocaine attributed to him under U.S.S.G. § 2D1.1(c), but on the

statutory mandatory minimum. See U.S.S.G. § 5G1.1(b). As such, Amendment

706 had no effect on Plair’s sentencing range of twenty years’ imprisonment.

      Plair argues that the district court erred at his original sentencing when it

imposed the twenty-year statutory mandatory minimum because his prior

conviction was not final when he commenced this federal drug offense. This

argument cannot be raised in a § 3582(c)(2) motion because the issue relates to an

original sentencing determination and not to a guideline amendment that has

subsequently lowered Plair’s sentencing range. See United States v. Moreno, 

, 1220 (11th Cir. 2005) (explaining that in a § 3582(c)(2) proceeding all

original sentencing determinations remain the same except the guideline range that

has since been amended).

      Plair’s argument that his sentence is unreasonable based on Kimbrough v.

United States, 

, 

(2007), is foreclosed by our precedent.

See United States v. Melvin, 

, 1192 (11th Cir. 2009) (concluding

that Kimbrough does not “prohibit the limitations on a judge’s discretion in

reducing a sentence imposed by § 3582(c)(2) and the applicable policy statement



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by the Sentencing Commission”), cert. denied, 

(2009); United

States v. Jones, 

, 1369 (11th Cir. 2008) (concluding that United

States v. Booker, 

, 

(2005) does not provide a basis on

which to grant a § 3582(c)(2) motion), cert. denied, 

(2009).

      Thus, the district court did not have the authority to reduce Plair’s sentence

and properly denied Plair’s § 3582(c)(2) motion.

      AFFIRMED.




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