[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11052 ELEVENTH CIRCUIT
MARCH 11, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 03-10004-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARSHELL COOPER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 11, 2010)
Before DUBINA, Chief Judge, TJOFLAT and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Marshell Cooper appeals the district court’s denial of her motion
for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). Cooper concedes
that, because she was sentenced as a career offender, her motion for a reduction of
sentence was properly denied in light of our decision in United States v. Moore,
541 F.3d 1323, 1330 (11th Cir. 2008), cert. denied, 129 S. Ct. 1601 (2009). She
argues on appeal, however, that Moore was wrongly decided, as it is allegedly
inconsistent with the Supreme Court’s decision in United States v. Booker, 543
U.S. 220, 125 S. Ct. 738 (2005). She also argues that her substantial rehabilitation
and accomplishments while incarcerated should permit a sentence reduction.
“We review de novo a district court’s conclusions about the scope of its legal
authority under 18 U.S.C. § 3582(c)(2).” United States v. Jones, 548 F.3d 1366,
1368 (11th Cir. 2008), cert. denied, 129 S. Ct. 1657 (2009). 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 sentenced as career criminals are ineligible for sentence reductions
under Amendment 706 where their guideline range is established under U.S.S.G.
§ 4B1.1. Moore, 541 F.3d at 1330 (“Where a retroactively applicable guideline
amendment reduces a defendant's base offense level, but does not alter the
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sentencing range upon which his or her sentence was based, § 3582(c)(2) does not
authorize a reduction in sentence. Here, although Amendment 706 would reduce
the base offense levels applicable to the defendants, it would not affect their
guideline ranges because they were sentenced as career offenders under § 4B1.1.”).
In Jones, we held that if a defendant is ineligible for a sentence reduction
under § 3582(c)(2), the Supreme Court’s decision in Booker does not provide an
independent basis to rectify that ineligibility. Jones, 548 F.3d at 1369. Further,
“[a] district court does not have inherent authority to modify a previously imposed
sentence; it may do so only pursuant to statutory authorization.” United States v.
Diaz-Clark, 292 F.3d 1310, 1318 (11th Cir. 2002) (quoting United States v.
Mendoza, 118 F.3d 707, 709 (10th Cir. 1997)).
Cooper concedes that she was sentenced as a career offender, and that our
decision in Moore precludes her from benefitting from Amendment 706. Because
Moore remains controlling on this issue, Cooper’s appeal is without merit. See
United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993) (“[I]t is the firmly
established rule of this Circuit that each succeeding panel is bound by the holding
of the first panel to address an issue of law, unless and until that holding is
overruled en banc, or by the Supreme Court.”).
Cooper’s Booker argument is likewise unavailing, because Booker does not
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provide an independent basis for a sentencing reduction under § 3582. See Jones,
548 F.3d at 1369. Finally, the equitable argument made by Cooper must be
rejected, as absent statutory authority, a district court does not have discretion to
reduce a previously imposed, lawful sentence. See Diaz-Clark, 292 F.3d at
1317–18.
For the above-stated reasons, we affirm the district court’s order denying
Marshell’s motion for a reduction of sentence.
AFFIRMED.
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