[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-13881 MAY 13, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00104-CR-FTM-33-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LISA HARRIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 13, 2009)
Before TJOFLAT, PRYOR and FAY, Circuit Judges.
PER CURIAM:
On November 30, 2005, the district court, after accepting appellant’s plea of
guilty, sentence appellant to concurrent prison sentences of 235 months for
conspiracy to possess with intent to distribute five grams or more of cocaine base,
in violation of 21 U.S.C. § 846, and for possession with intent to distribute fifty
grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1).1
In March 2008, appellant moved the district court to reduce her sentences
pursuant to Amendment 706 to the Sentencing Guidelines, which reduces the
offense levels for cocaine base. The court denied her motion, concluding that since
her offense level was determined under the career offender Guideline, she was
ineligible for a sentence reduction under Amendment 706. She now appeals
contending that, although she qualified as a career offender at sentencing, the court
departed downward based upon the finding that her criminal history category
overstated her criminal record. Accordingly, she contends that she is eligible for
sentence reduction under Amendment 706.
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.
1
The presentence report, and the district court, calculated appellant’s base offense level
at 32 under U.S.S.G. § 2D1.1(c)(4), and determined that she was a career offender under
U.S.S.G. § 4B1.1. Because the statutory maximum sentence life imprisonment, her offense level
became 37. After reducing that level for her acceptance of responsibility and reducing her
criminal history category to V, the court arrived as a sentence range of 235 to 293 months’
imprisonment.
2
§ 3582(c)(2). Any reduction, however, must be “consistent with applicable policy
statements issued by the Sentencing Commission.” Id The applicable policy
statements provide that “a reduction in the defendant’s term of imprisonment is not
authorized under 18 U.S.C. 3582(c)(2) and is not consistent with this policy
statement if” a retroactive amendment applies to the defendant but “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)).
Here, although, at sentencing, the district court departed downward in
arriving at appellant’s criminal history category, her offense level was calculated
by application of the career offender provision. Thus, the sentence range upon
which her sentences were based was not affected by Amendment 706, and she is
ineligible for sentence reduction. See 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).
AFFIRMED.
3