                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                            FEB 19, 2009
                              No. 08-14518                THOMAS K. KAHN
                          Non-Argument Calendar               CLERK
                        ________________________

                     D. C. Docket No. 06-20654-CR-ASG

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

MILTON WALKER,
a.k.a. Six Footer,
a.k.a. Footer,

                                                         Defendant-Appellant.


                        ________________________

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

                            (February 19, 2009)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
      Milton Walker appeals the district court’s order denying his 18 U.S.C.

§ 3582(c)(2) motion for a reduction in sentence. The district court found that

Walker was not entitled to relief because he had originally received a 120 month

mandatory minimum sentence. Walker argues for the first time on appeal that his

mandatory minimum sentence violates the equal protection component of the Due

Process Clause of the Fifth Amendment. He argues that the 100-to-1 sentencing

ratio between crack cocaine and powder cocaine offenses is subject to strict

scrutiny because of its disproportionate impact on African-American defendants.

Alternatively, he argues that, under rational basis review, there is no rational basis

for this sentencing disparity.

      Section 3582(c)(2) of Title 18 authorizes a district court to reduce the

sentence “of a defendant who has been sentenced to a term of imprisonment based

on a sentencing range that has subsequently been lowered by the Sentencing

Commission. . . .” Amendment 706 to the Sentencing Guidelines reduced the base

offense level for some crack cocaine offenses by two. See U.S. S ENTENCING

G UIDELINES M ANUAL app. C, amend. 706 (2007). Amendment 713 made

Amendment 706 retroactive effective March 3, 2008. See U.S. S ENTENCING

G UIDELINES M ANUAL app. C, amend. 713 (Supp. May 1, 2008).

      However, § 3582(c)(2) also requires that any sentence reduction be



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“consistent with applicable policy statements issued by the Sentencing

Commission.” Section 1B1.10(a)(2)(B) of the Sentencing Guidelines states that a

sentence reduction is not authorized if the relevant amendment “does not have the

effect of lowering the defendant’s applicable guideline range.” The application

note for this section provides that an amendment does not have the effect of

lowering the defendant’s guideline range if the defendant was originally sentenced

to “a statutory minimum term of imprisonment.” U.S. S ENTENCING G UIDELINES

M ANUAL § 1B1.10, cmt. n.1(A) (Supp. May 1, 2008). The Supreme Court has also

held that district courts remain “constrained by the mandatory minimums” in 21

U.S.C. § 841. Kimbrough v. United States, 128 S. Ct. 558, 574 (2007).

      Generally we review the denial of a § 3582(c)(2) motion for abuse of

discretion. United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002).

Because Walker is raising his constitutional argument for the first time on appeal,

however, we review that claim for plain error. See United States v. Rodriguez, 398

F.3d 1291, 1298 (11th Cir. 2005). Under the plain error standard, the defendant

must show: “(1) error, (2) that is plain and (3) that affects substantial rights.”

United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007) (quotations

omitted). Moreover, we will only correct a plain error if it “seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. (citation and



                                            3
quotation omitted).

      A § 3582(c)(2) proceeding “does not constitute a de novo resentencing.”

United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000). We have previously

held that constitutional claims are “extraneous resentencing issues” that a court

cannot address in the context of a § 3582(c)(2) proceeding. Id. at 782. Instead, a

defendant should raise any constitutional challenges to a sentence by making a

motion to vacate under 28 U.S.C. § 2255. Id.

      Here, Walker originally received a mandatory minimum sentence of 120

months in prison. Because he was sentenced in accordance with the statutory

mandatory minimum penalty, Amendment 706 did not lower his guideline range.

Thus, the district court did not err in holding that Walker was not entitled to relief

under § 3582(c)(2). The district court also did not commit plain error by failing to

consider a due process challenge to the mandatory minimum penalty provisions

because the court could not address those claims in a § 3582(c)(2) proceeding.

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

error. Accordingly, we affirm.

      AFFIRMED.




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