[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16051 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 22, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 02-60200-CR-UU
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR GARRY BAXTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 22, 2009)
Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.
PER CURIAM:
Victor Garry Baxter appeals from the district court’s denial of his motion to
modify his sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706 to the
Sentencing Guidelines, which reduced the base offense levels applicable to crack
cocaine found in U.S.S.G. § 2D1.1. On appeal, Baxter, who was sentenced based
on his status as a career offender, argues that the district court erred in refusing to
reduce his sentence, on grounds that United States v. Moore, 541 F.3d 1323 (11th
Cir. 2008), cert. denied, McFadden v. United States, 129 S. Ct. 965 (2009), and
cert. denied, __ S. Ct. __ (U.S. Mar. 9, 2009) (No. 08-8554), was wrongly decided
and that the district court had discretion, under United States v. Booker, 543 U.S.
220 (2005), to consider the 18 U.S.C. § 3553(a) factors and reduce his sentence.
After careful review, 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 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). Any reduction, however, must be “consistent with applicable
policy statements issued by the Sentencing Commission.” Id. A sentence
modification is not consistent with the Commission’s policy statements where an
amendment “does not have the effect of lowering the defendant’s applicable
guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).
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Baxter’s arguments are foreclosed by precedent. In Moore, we held that
where a defendant’s base offense level is calculated under the career offender
provision in U.S.S.G. § 4B1.1 rather than the drug quantity table in § 2D1.1(c),
Amendment 706 does not operate to lower the defendant’s guideline range and,
therefore, the defendant is not eligible for a sentence modification under
§ 3582(c)(2). 541 F.3d at 1330. Because Moore has not been overruled by this
Court sitting en banc or the Supreme Court, the district court was bound to follow
its holding. United States v. Valladeres, 544 F.3d 1257, 1264-65 (11th Cir. 2008).
Moreover, we have held that Booker, standing alone, does not provide a district
court with jurisdiction to modify a defendant’s sentence under § 3582(c)(2).
United States v. Moreno, 421 F.3d 1217, 1220-21 (11th Cir. 2005). Thus, the
district court did not err in denying Baxter’s § 3582(c)(2) motion, and, accordingly,
we affirm.
AFFIRMED.
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