[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-10339 May 12, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00044-CR-ORL-19-KRS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE HUGHLEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 12, 2009)
Before DUBINA, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Willie Hughley appeals from the district court’s denial of his motion to
modify his sentence pursuant to 18 U.S.C. § 3582(c)(2), based on Amendment 706
to the Sentencing Guidelines, which reduced base offense levels applicable to
crack cocaine. On appeal, Hughley argues that the district court erred in
determining that he was not eligible for relief under § 3582(c)(2) because he was
sentenced as a career offender under U.S.S.G. §4B1.1 rather than under the drug
quantity table set forth in § 2D1.1(c). 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).
In United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008), cert
denied, McFadden v. United States, 129 S. Ct. 965 (2009), and cert. denied, 129 S.
Ct. 1601 (2009), 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
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defendant’s guideline range and, therefore, the defendant is not eligible for a
sentence modification under § 3582(c)(2). We noted that a defendant who
qualifies as a career offender under § 4B1.1 may still be eligible for relief under §
3582(c)(2) and Amendment 706 where the district court determines that the career
offender provision over-represents his criminal history and, thus, sentences the
defendant according to the otherwise applicable guideline range set forth in §
2D1.1(c). Id. at 1329-30. We emphasized, however, that this would occur only
where the defendant’s offense level was determined by the drug quantity table in §
2D1.1(c). Id.
Here, any exception discussed in Moore does not apply to Hughley. At
Hughley’s sentencing hearing, the district court calculated his base offense level
pursuant to the career offender guideline in § 4B1.1. Although the district court
departed downward from Hughley’s base offense level by three levels in light of
various factors, the court did not calculate his offense level based on the drug
quantity table in § 2D1.1(c) rather than § 4B1.1. Because Hughley’s offense level
and resulting guideline range were based on his career offender status, Amendment
706 did not operate to reduce his offense level. Id. at 1330. As a result, any
exception discussed in Moore does not apply, and the district court correctly
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determined that Hughley was not eligible for relief under § 3582(c)(2). Id. at
1329-30. Accordingly, we affirm.
AFFIRMED.
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