[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13730 ELEVENTH CIRCUIT
FEBRUARY 26, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 05-60310-CR-CMA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
QUANTRELLE D. GREEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 26, 2010)
Before EDMONDSON, BIRCH and CARNES, Circuit Judges.
PER CURIAM:
Quantrelle Green appeals the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion for a sentence reduction pursuant to Amendment 706 to the
Sentencing Guidelines. Green was originally sentenced as a career offender under
U.S.S.G. § 4B1.1(b)(B) to a below-Guidelines sentence of 168 months’
imprisonment.
Green contends that Amendment 706 applies to this case because the district
court, by originally sentencing him below the guidelines range, “implied that the
career offender provisions were not totally applicable,” and, thus, did not sentence
him as a career offender. Alternatively, Green contends that United States v.
Moore, 541 F.3d 1323 (11th Cir. 2008), cert. denied, McFadden v. United States,
129 S.Ct. 965, and cert. denied, 129 S.Ct. 1601 (2009), was wrongly decided.
Any sentence reduction under § 3582(c)(2) must be “consistent with
applicable policy statements issued by the Sentencing Commission.” 18 U.S.C.
§ 3582(c)(2). The commentary to U.S.S.G. § 1B1.10 provides that “a reduction in
the defendant’s term of imprisonment is not authorized under 18 U.S.C.
§ 3582(c)(2) and is not consistent with this policy statement if” a retroactive
amendment applies to the defendant but “does not have the effect of lowering the
defendant’s applicable guideline range because of the operation of another
guideline or statutory provision.” U.S.S.G. § 1B1.10, comment. (n.1(A)). A
defendant sentenced pursuant to an offense level determined by U.S.S.G. § 4B1.1
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of the Guidelines is not entitled to § 3582(c)(2) relief because Amendments 706
and 713 do not lower the applicable guideline range for such career offenders.
Moore, 541 F.3d at 1327.
The fact that Green was sentenced below the guidelines range does not mean
that his offense level and guidelines range was not determined by the career
provision of § 4B1.1 of the guidelines. He was sentenced as a career offender
under § 4B1.1 and not under § 2D1.1, even though the court, after calculating his
guidelines range varied downward under § 3553(a) to recognize Green’s attempts
to find employment. In sentencing Green the district court rejected his contention
that he should not be sentenced as a career offender. As he conceded in the district
court, even with a 2-level reduction in his base offense level under Amendment
706, his guidelines range would have remained the same; it would have because of
the career offender provision. And because Green was sentenced as a career
offender, he was ineligible for § 3582(c)(2) relief under Amendment 706. See
Moore, 541 F.3d at 1327.
We are bound to follow our prior binding precedent in Moore unless and
until it is overruled by us en banc or by the Supreme Court. United States v.
Vegas-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008).
AFFIRMED .
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