[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-15649 March 18, 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 03-00227-CR-T-23TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARIAN TENSLEY,
a.k.a. Drac
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 18, 2008)
Before BIRCH, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Darian Tensley appeals the district court’s denial of his 18 U.S.C. § 3582(c)
motion to modify his sentence, based on the U. S. Sentencing Commission’s
amendment to U.S.S.G. § 2D1.1, which lowered the base offense level for crimes
involving cocaine base.
We review de novo a district court’s finding that it did not have the authority
to modify a sentence under § 3582(c)(2). United States v. White, 305 F.3d 1264,
1267 (11th Cir. 2002). Amendment 706, effective November 1, 2007, reduced the
base offense level for offenses involving at least 50, but less than 150, grams of
cocaine base from 32 to 30. See U.S.S.G. App. C, Amend. 706; compare U.S.S.G.
§ 2D1.1(c)(4) (2006), with U.S.S.G. § 2D1.1(c)(5) (2007). Section 3582(c)(2)
states a court may modify a term of imprisonment, based on a Guidelines range
that is subsequently lowered by the Sentencing Commission, if the reduction is
consistent with applicable policy statements from the Sentencing Commission, and
it does not limit the time period when a court may make such a modification. See
18 U.S.C. § 3582(c)(2). A § 3582(c)(2) reduction is not authorized unless the
amendment is listed in § 1B1.10(c). U.S.S.G. § 1B1.10(a). Amendment 706 was
listed in § 1B1.10(c) effective on March 3, 2008.
The district court did not err in denying the motion because Tensley
prematurely filed it on November 8, 2007. Although the amendment is retroactive,
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it did not become retroactive until March 3, 2008. Accordingly, we affirm the
district court.
AFFIRMED.
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