[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16624 ELEVENTH CIRCUIT
APRIL 16, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 02-80196-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLARENCE KELLEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 16, 2009)
Before BIRCH, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Clarence Kelley appeals the district court’s denial of his motion for a
reduced sentence under 18 U.S.C. § 3582(c)(2). Kelley was sentenced in 2003 to
188 months of imprisonment for distributing five grams or more of crack cocaine,
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Kelley concedes, and the
record confirms, that his sentence ultimately derived from his designation as a
career offender under U.S.S.G. § 4B1.1. He further acknowledges that his case is
controlled by United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008), cert.
denied, ___ U.S. ___ , ___ S. Ct. ___ (2009), in which we concluded that a
defendant is ineligible for a sentence reduction under Amendment 706 to the
Sentencing Guidelines if his sentence was based on the career offender provision
under U.S.S.G. § 4B1.1, rather than on the amount of drugs attributable to him
under U.S.S.G. § 2D1.1(c).
We reject Kelley’s invitation to reconsider our decision in Moore. We also
reject his argument that United States v. Booker, 543 U.S. 220, 125 S. Ct. 738
(2005), renders the guidelines advisory in a § 3582(c)(2) proceeding. We have
previously held that Booker does not apply to § 3582(c)(2) proceedings. See
United States v. Melvin, 556 F.3d 1190, 1193 (11th Cir. 2009) (per curiam), pet.
for cert. filed (Feb. 10, 2009) (No. 08-8664). Accordingly, we AFFIRM the
district court’s denial of Kelley’s § 3582(c)(2) motion based on his ineligibility for
a sentence reduction under Amendment 706.
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AFFIRMED.
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