[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 18, 2009
No. 09-10903 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 94-08086-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAYMOND LEO MCKENZIE, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 18, 2009)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Raymond Leo McKenzie, Jr., through counsel, appeals the denial of his pro
se motion for sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2). His motion
was based on Amendment 706 to the Sentencing Guidelines, which reduced base
offense levels applicable to crack cocaine offenses. On appeal, he argues that the
district court erroneously determined that it had no authority to reduce his sentence
because his sentence was based on a sentence range that was lowered by
Amendment 706, even though he was ultimately sentenced as a career offender.
He further argues that the Guidelines, including § 3582(c)(2), are to be applied in
an advisory manner, pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct.
738, 160 L.Ed.2d 621 (2005). He concedes that our decision in 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, 129 S.Ct. 1601 (2009), controls this appeal,
but states that he seeks to preserve the issue for future review.
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.
§ 3582(c)(2). Amendment 706, which was made retroactive by Amendment 713,
reduced the offense levels in U.S.S.G. § 2D1.1 for crack cocaine offenses by two
levels. See U.S.S.G. App. C, Amends. 706, 713 (2008). Any sentence reduction,
however, must be “consistent with applicable policy statements issued by the
2
Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The applicable policy
statements, found in U.S.S.G. § 1B1.10(a)(2)(B), state a reduction of a term of
imprisonment is not authorized if the retroactive amendment does not have the
effect of lowering the defendant’s applicable guideline range.
The arguments McKenzie presents are foreclosed by precedent. The district
court was not authorized to reduce his sentence because he was sentenced as a
career offender pursuant to § 4B1.1. See Moore, 541 F.3d at 1327 (holding that a
defendant sentenced as a career offender pursuant to § 4B1.1 is not entitled to
§ 3582 relief because Amendments 706 and 713 did not lower the applicable
guideline range for career offenders). As for his Booker argument, it is
inapplicable to § 3582(c)(2) proceedings. See United States v. Melvin, 556 F.3d
1190, 1193 (11th Cir. 2009), cert. denied, (U.S. May 18, 2009) (No. 08-8664)
(holding that Booker and its progeny have no application to § 3582(c)(2)
proceedings).
AFFIRMED.
3