[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 2, 2009
No. 08-13363 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00165-CR-ORL-31-JGG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES ROOSEVELT LEE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 2, 2009)
Before BLACK, CARNES, and BARKETT, Circuit Judges.
PER CURIAM:
James Roosevelt Lee, a federal prisoner convicted of a crack cocaine
offense, appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion to
modify his sentence. Lee contends that he is entitled to a sentence reduction based
on Amendment 706 to the sentencing guidelines, which lowered the base offense
levels applicable to certain crack cocaine offenses. The district court held that it
lacked the authority to resentence Lee based on Amendment 706 because Lee was
sentenced as a career offender. Lee argues that the was entitled to a reduction
because although he qualified as a career offender, the district court’s downward
variance of his sentence meant that he was not sentenced 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
where the defendant’s sentence was based on a sentencing range that was later
reduced by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Any reduction,
however, must be “consistent with applicable policy statements issued by the
Sentencing Commission.” Id. A sentence reduction is not “consistent with
applicable policy statements issued by the Sentencing Commission”—and
therefore not authorized under § 3582(c)(2)—if the amendment does not lower the
defendant’s guideline range. U.S.S.G. § 1B1.10(a)(2)(B). A defendant sentenced
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under the career-offender provision of § 4B1.1 of the guidelines is not entitled to
§ 3582 relief because Amendments 706 and 713 do not lower the applicable
guideline range for career offenders. See United States v. Moore, 541 F.3d 1323,
1327 (11th Cir. 2008).
Although the district court applied a downward variance in sentencing Lee
originally, it still considered him a career offender. The district court never stated
that it did not consider Lee a career offender or that the career offender designation
overrepresented his criminal history. Instead, after explicitly discussing the
18 U.S.C. § 3553(a) factors and Lee’s extensive criminal history, the district court
applied a downward variance to reduce the sentencing disparity between Lee and a
codefendant. Because Lee was sentenced as a career offender, he is not entitled to
a sentence reduction under Amendment 706.
AFFIRMED.
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