[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14828 ELEVENTH CIRCUIT
JUNE 2, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 04-00067-CR-T-26-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEE CURTIS ROBINSON,
a.k.a. Fat,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 2, 2009)
Before CARNES, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Lee Curtis Robinson challenges the district court’s order denying his 18
U.S.C. § 3582(c)(2) motion to modify his sentence. Robinson contends that he is
entitled to a sentence reduction under Amendment 706 to the sentencing
guidelines, which reduced the base offense levels applicable to certain crack
cocaine offenses. The district court ruled that it lacked the authority to reduce
Robinson’s sentence under Amendment 706 because he was sentenced as a career
offender.
“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). Any sentence reduction under § 3582(c)(2) must be
“consistent with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). The sentencing guidelines provide that “a
reduction in the defendant’s term of imprisonment is not authorized under 18
U.S.C. 3582(c)(2) and is not consistent with this policy statement if” a retroactive
amendment applies to the defendant but “does not have the effect of lowering the
defendant’s applicable guideline range because of the operation of another
guideline or statutory provision.” U.S.S.G. § 1B1.10, cmt n.1(A). A defendant
sentenced under § 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).
2
It is undisputed that Robinson’s guideline range was determine by applying
the career offender provision of U.S.S.G. § 4B1.1. Robinson contends, however,
that Moore is distinguishable because here the district court applied a downward
variance under 18 U.S.C. § 3553 and sentenced Robinson based on an offense level
of 31, instead of the guidelines level of 34. He argues that by applying that
downward variance, the district court implicitly determined that the career offender
provision overstated his criminal history because the downward variance had the
same effect as not considering him a career offender. He argues, therefore, that he
was not sentenced as a career offender and is eligible for a sentence reduction
under Amendment 706. That arguments fails. The district court never suggested
that it was not considering Robinson a career offender or that Robinson’s criminal
history was overrepresented by the application of the career offender provision.
Instead, the district court varied downward from the guideline range under 18
U.S.C. § 3553(a)(6) to avoid an unwarranted sentencing disparity between
Robinson and a codefendant. Robinson was still sentenced under the career
offender provision, and therefore, he is not entitled to a sentence reduction under
Amendment 706.
AFFIRMED.
3