[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 20, 2009
No. 08-16448
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 04-14044-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAKARIA VASHON MCCRAY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 20, 2009)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Pursuant to a plea agreement, Takaria Vashon McCray pled guilty on
December 13, 2004, to possession with intent to distribute more than five grams of
cocaine base (“crack cocaine”), in violation of 21 U.S.C. § 841(a). The Guidelines
prescribed a sentence range of 188 to 235 months’ imprisonment, and, after
making a downward departure from that range under U.S.S.G. § 5K1.1, the district
court sentenced McCray on March 31, 2005, to prison term of 120 months.
On July 14, 2008, McCray moved the district court pursuant to 18 U.S.C. §
3582(c) to reduce his sentence based on Amendment 706 to the Guidelines, which
provides for the reduction of base offense levels applicable to crack cocaine. The
district court denied his motion on the ground that because he was sentenced as a
career offender under U.S.S.G. § 4B1.1, Amendment 706 does not lower his base
offense level. McCray now appeals the court’s ruling.
McCray concedes that our precedent forecloses his argument that the court
should have reduced his sentence; he appeals simply to preserve the issue. His
concession is well made since our precedent does foreclose his appeal. “Where a
retroactively applicable guideline amendment 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.” 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, (U.S. Mar. 9, 2009) (No. 08-8554).
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Because McCray’s sentencing range was calculated under the career offender
provisions of § 4B1.1, rather than the drug quantity table in § 2D1.1, Amendment
706 does not have the effect of lowering McCray’s sentencing range.
AFFIRMED.
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