[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13266 ELEVENTH CIRCUIT
JUNE 9, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 03-00032-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEITH JEROME HARVEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(June 9, 2009)
Before BLACK, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Keith Jerome Harvey, proceeding pro se, appeals the district court’s denial
of his motion for a sentence reduction, filed pursuant to 18 U.S.C. § 3582(c)(2).
Harvey pleaded guilty to conspiracy to possess with intent to distribute and
two counts of possession with intent to distribute crack cocaine, in violation of 21
U.S.C. §§ 846 and 841, respectively. In determining the sentencing guidelines
range, the probation officer noted that Harvey qualified as a career offender, which
resulted in an offense level of 37 and a guidelines range of 262 to 327 months’
imprisonment. Because the conspiracy conviction carried a statutory mandatory
minimum of life imprisonment, however, the guidelines range became life.
U.S.S.G. § 5G1.1(b). After the government informed the court of Harvey’s
substantial assistance and moved for a reduction in sentence under U.S.S.G.
§ 5K1.1, the court sentenced Harvey to 180 months’ imprisonment. Harvey did
not file a direct appeal.
Harvey subsequently moved for a reduction in sentence under 18 U.S.C.
§ 3582(c) based on Amendment 706 to the sentencing guidelines, which reduced
base offense levels applicable to crack cocaine offenses. The district court denied
the motion on the ground that the amendment would not change Harvey’s
guideline range due to his status as a career offender. The court further stated that
“under the facts and circumstances of this case 180 months is still the appropriate
sentence.” This appeal followed.
“We review a district court’s decision whether to reduce a sentence pursuant
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to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing
guidelines, for abuse of discretion. However, where the issue presented involves a
legal interpretation, our review is de novo." United States v. Williams, 549 F.3d
1337, 1338-39 (11th Cir. 2008)(quotations and citations removed).
Under § 3582(c)(2), a district court may reduce the sentence 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). Where a defendant was sentenced as a career offender and not based
on the amount of drugs involved, his sentence is not “based on a sentencing range
that has subsequently been lowered.” Moore, 541 F.3d at 1327-28.
Moreover, where a statutory mandatory minimum sentence becomes the
defendant’s guideline range, any changes to the guideline range associated with the
original offense do not affect that defendant’s guideline range. Williams, 549 F.3d
at 1339-40. Accordingly, even where the defendant benefitted from a § 5K1.1
motion and ultimately received a sentence below the guideline range for his
original cocaine offense, Amendment 706 does not entitled the defendant to § 3582
relief. Id. at 1340-42.
Although Harvey acknowledges on appeal that his argument is foreclosed by
United States v. Moore, 541 F.3d 1323 (11th Cir. 2008), cert. denied, McFadden v.
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United States, 129 S.Ct. 965 (2009), and cert. denied, United States v. Moore, 129
S.Ct. 1601 (2009), he contends that Moore was wrongly decided because this court
misinterpreted § 3582’s use of the terms “sentencing range” and “applicable
category of offense committed.” We disagree and are bound by decisions of our
prior panels unless or until such decision is overruled by this court sitting en banc
or by the Supreme Court. United States v. Steele, 147 F.3d 1316, 1317-18 (11th
Cir. 1998).
Here, Harvey’ guidelines range was determined by the statutory mandatory
minimum. Therefore, Amendment 706 had no effect on his guideline range, and
did not entitle him to relief under § 3582. Accordingly, Harvey’s arguments are
foreclosed by this court’s decisions in Moore and Williams.1
AFFIRMED.
1
To the extent Harvey’s brief constitutes a petition for hearing en banc, it is denied.
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