[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14588 ELEVENTH CIRCUIT
JUNE 15, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-00114-CR-ORL-31-KRS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARL DENNIS JOHNSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 15, 2009)
Before BARKETT, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Carl Dennis Johnson, a federal prisoner convicted of a crack cocaine
offense, appeals the district court’s denial of his counseled 18 U.S.C. § 3582(c)(2)
motion for reduction of sentence based on Amendment 706 to U.S.S.G. § 2D1.1,
which lowered the base offense levels applicable to crack cocaine offenses. On
appeal, Johnson argues, through counsel, that he is entitled to a reduction under
Amendment 706 because he was sentenced pursuant to § 2D1.1, not pursuant to
the career-offender provision of U.S.S.G. § 4B1.1, given that the district court at
sentencing noted that the guideline range under § 4B1.1 was grossly
disproportionate to the seriousness of the offense and that the crack-to-cocaine
disparity was unwarranted. Johnson also argues that he falls within an exception
created in United States v. Moore, 541 F.3d 1323, 1327 (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), wherein a defendant could receive a sentence
reduction if he was not sentenced as a career offender, even if he qualified as one.
“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 based on a sentencing range that
subsequently has been lowered by the Sentencing Commission. 18 U.S.C.
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§ 3582(c)(2). Any reduction, however, must be “consistent with applicable policy
statements issued by the Sentencing Commission.” Id. A reduction of a term of
imprisonment is not “consistent with applicable policy statements issued by the
Sentencing Commission”—and is, therefore, not authorized under § 3582(c)(2)—if
the retroactive amendment does not have the effect of lowering the defendant’s
applicable guideline range. U.S.S.G. § 1B1.10(a)(2)(B).
A defendant whose original guideline sentencing range was based on the
career-offender guideline section of § 4B1.1 is precluded from receiving a sentence
reduction because Amendment 706 does not have the effect of lowering the
applicable guideline range. See Moore, 541 F.3d at 1327; see also U.S.S.G.
§ 1B1.10, comment. (n.1(A)) (stating that a reduction under § 3582(c)(2) is not
authorized where “the amendment . . . is applicable to the defendant but the
amendment does not have the effect of lowering the defendant’s applicable
guideline range because of the operation of another guideline or statutory
provision”). Where the base offense levels under § 2D1.1 “play[] no role” in the
calculation of the guideline range, the defendant is not entitled to § 3582 relief
under Amendment 706. Moore, 541 F.3d at 1327.
Upon review of the record and the parties’ briefs, we discern no reversible
error. Johnson was determined to be a career offender, and the district court
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sentenced him as such. At sentencing, the court never stated that the PSI’s
career-offender determination was incorrect or overrepresented Johnson’s criminal
history. Rather, after explicitly discussing the § 3553(a) factors and the
crack-to-cocaine disparity, the district court used its discretion to vary downward
from the advisory career-offender guideline range. The crack-cocaine base offense
level of § 2D1.1 played no role in the calculation of Johnson’s guideline range, and
thus Amendment 706 did not lower that range. Accordingly, Johnson is not
entitled to a sentence reduction pursuant to § 3582. Id.
AFFIRMED.
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