United States v. Patrick Eldira

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16382 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 12, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 98-00918-CR-PAS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PATRICK ELDIRA,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(May 12, 2009)

Before BIRCH, HULL and MARCUS, Circuit Judges.

PER CURIAM:

Patrick Eldira, through counsel, appeals from the district court’s denial of his

motion for a sentence reduction under 18 U.S.C. § 3582(c)(2), based on

Amendment 706 to the U.S. Sentencing Guidelines, which amended the base
offense levels in U.S.S.G. § 2D1.1(c) applicable to crack cocaine offenses. On

appeal, Eldira argues that he was eligible for a sentence reduction because, even

though he was sentenced a career offender, the controlling precedent, 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. 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 not modify a term of imprisonment unless a defendant

was sentenced based on a sentencing range that has “subsequently been lowered”

by the Sentencing Commission. See 18 U.S.C. §§ 3582(c)(1)(B), (c)(2).

Amendment 706, which has been made retroactive, amends the Drug Quantity

Table in § 2D1.1(c) “to provide a two-level reduction in base offense levels for

crack cocaine offenses.” Moore, 541 F.3d at 1325. However, if a defendant is a

career offender, his base offense level is determined under the career offender

guideline in § 4B1.1(b), and not the drug quantity guideline in § 2D1.1(c). 541

F.3d at 1327-28.

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 For this reason, we held in Moore that Amendment 706 has no effect on the

applicable guideline range for defendants who are sentenced under the career

offender guideline. Id. at 1330. Moreover, we have held that Booker does not, by

itself, permit a district court to impose a § 3582(c)(2) sentence reduction. United

States v. Jones, 548 F.3d 1366, 1369 (11th Cir. 2008). We are bound to follow our

prior binding precedent “unless and until it is overruled by this [C]ourt en banc or

by the Supreme Court.” United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th

Cir. 2008) (quotations omitted).

Eldira’s argument that Moore was wrongly decided is meritless because

Moore has not been overruled by either this Court sitting en banc or the Supreme

Court, and, therefore, we remain bound by the Moore decision. See Vega-Castillo,

540 F.3d at 1236. In addition, because Eldira is ineligible for a § 3582 sentence

reduction, Booker cannot be applied, on its own, to permit such a reduction to take

place. See Jones, 548 F.3d at 1369. Accordingly, we affirm.

AFFIRMED.

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