[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-16502 APRIL 30, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-60232-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVEN EUGENE,
a.k.a. Steven Eugene Lousley,
a.k.a. Louie,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 30, 2009)
Before TJOFLAT, DUBINA and FAY, Circuit Judges.
PER CURIAM:
Steven Eugene, who was convicted of crack cocaine offenses, appeals
through counsel the denial of his pro se motion for modification of sentence,
pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706. The district court denied
the motion because Eugene’s base offense level was determined using the career
offender guideline, U.S.S.G. § 4B1.1, rather than U.S.S.G. § 2D1.1. Eugene
argues that he nevertheless was eligible for a reduction because the district court
rejected his career offender guideline imprisonment range and granted a downward
variance. For the reasons set forth below, we affirm.
“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. James, 548 F.3d
983, 984 (11th Cir. 2008). A district court may 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.” 18 U.S.C. § 3582(c)(2). Amendment 706, which was made
retroactive by Amendment 713, reduced the offense levels in § 2D1.1 for crack
cocaine offenses by two levels. See U.S.S.G. App. C, Amends. 706, 713 (2008).
Any sentence reduction, however, must be “consistent with applicable policy
statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The
applicable policy statements provide that “a reduction in the defendant’s term of
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imprisonment is not authorized under 18 U.S.C. 3582(c)(2) and is not consistent
with this policy statement if . . . [a retroactive amendment] is applicable to the
defendant but the amendment 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)).
The district court did not err in denying Eugene’s motion. See James, 548
F.3d at 984. The record demonstrates that Eugene’s base offense level initially
was set at 28, pursuant to § 2D1.1, and criminal history category at VI. Because he
qualified as a career offender, however, his base offense level was changed to 34,
pursuant to § 4B1.1, and his criminal history category stayed at VI. Thus, his
guideline imprisonment range was 262 to 327 months. At sentencing, the district
court adopted the PSI calculations, but granted a downward variance and sentenced
Eugene to 192 months’ imprisonment. The district court cited the 18 U.S.C.
§ 3553(a) factors and particularly was influenced by Eugene’s troubled childhood.
Because Eugene’s guideline imprisonment range was calculated using
§ 4B1.1 rather than § 2D1.1, Amendment 706’s changes to § 2D1.1 did not affect
his sentence. See United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008),
cert. denied, McFadden v. United States, 129 S.Ct. 965 (2009), and cert. denied,
(U.S. Mar. 9, 2009) (“Where a retroactively applicable guideline amendment
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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.”). The district court’s grant of a downward variance does
not change this conclusion. There is no evidence that the district court rejected the
career offender guideline imprisonment range or otherwise based its sentence on
the guideline imprisonment range that used § 2D1.1. See Moore, 541 F.3d at
1329-30. Rather, the district court simply granted a variance, based on its
consideration of the § 3553(a) factors and Eugene’s troubled childhood, from the
career offender guideline imprisonment range. Indeed, the sentence imposed was
not even within the guideline imprisonment range that used § 2D1.1(a)(3), which
would have been 140 to 165 months. Thus, Eugene was not eligible for a
reduction, and we affirm.
AFFIRM.
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