[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 7, 2009
No. 08-12009 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 96-08054-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNIE LEE ALLEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 7, 2009)
Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Johnnie Lee Allen appeals the denial of his motion for a reduced sentence
pursuant to 18 U.S.C. § 3582(c)(2). Allen, who was sentenced as career offender,
based his motion on Amendment 706 to the sentencing guidelines, which reduced
the base offense levels applicable to crack cocaine offenses. Allen contends that
the district court should have realized when it evaluated his eligibility for a
sentence reduction that his original sentence exceeded the statutory maximum
permissible for the charged offense both because the indictment failed to allege a
specific drug amount and because the government failed to file a notice of
enhancement pursuant to 21 U.S.C. § 851. He argues that the district court should
have lowered his sentence for this reason.
Because § 3582(c)(2) proceedings are not de novo resentencings, Allen’s
arguments about alleged flaws in his original sentencing determinations do not
permit a sentence reduction. See United States v. Bravo, 203 F3.d 778, 781 (11th
Cir. 2000). Nor is Allen eligible for a sentence reduction under Amendment 706.
His sentence was based on the career-offender provisions in U.S.S.G. § 4B1.1
instead of the drug quantity table in U.S.S.G. § 2D1.1, so Amendment 706 did not
have the effect of lowering his guideline range. See United States v. Moore, 541
F.3d 1323, 1330 (11th Cir. 2008), cert. denied, McFadden v. United States, 129 S.
Ct. 965 (2009). Thus the district court properly denied Allen’s § 3582(c)(2)
motion.
AFFIRMED.
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