[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15650 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 16, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 98-00834-CR-FAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK HENRY LOWE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 16, 2009)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Frank Henry Lowe 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 the ground 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 because the Supreme Court’s decision in United States v. Booker, 543
U.S. 220 (2005), rendered the Guidelines advisory and, thus, gave the district court
discretion to reduce his sentence despite the fact that he was sentenced as a career
offender. After thorough 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
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amendment “does not have the effect of lowering the defendant’s applicable
guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).
Lowe’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. Moreover, in United States v. Melvin, we held
that a district court’s discretion to reduce a defendant’s sentence in a § 3582(c)(2)
proceeding is limited by the Sentencing Commission’s applicable policy
statements. 556 F.3d 1190, 1192 (11th Cir. 2009), petition for cert. filed, (U.S.
Feb. 10, 2009) (No. 08-8664). Accordingly, the district court correctly determined
that it lacked authority to reduce Lowe’s sentence, and we affirm.
AFFIRMED.
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