[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 27, 2009
No. 08-16401 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00073-CR-OC-10-GRJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY MCKINNIES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 27, 2009)
Before DUBINA, Chief Judge, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Gregory McKinnies appeals, pro se, the district court’s denial of his motion
for a reduction of sentence, pursuant to 18 U.S.C. § 3582(c)(2). McKinnies’s
§ 3582(c)(2) motion was based on Amendment 706 to the Guidelines, which
reduced base offense levels applicable to crack cocaine. On appeal, McKinnies
argues that he was entitled to a sentence reduction under § 3582(c)(2) because
Amendment 706 to the Sentencing Guidelines reduced his base offense level and
therefore changed his applicable guideline range. McKinnies also contends that
the district court’s drug quantity finding at his original sentencing was ambiguous,
and that his case should be remanded for further proceedings. He further argues
that the district court: (1) incorrectly determined that he was a career offender; and
(2) failed to consider the § 3553(a) factors, as well as the crack/cocaine powder
sentencing disparity and the Supreme Court’s decision in United States v. Booker,
543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
“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 not modify a term of imprisonment
unless a defendant was sentenced based on a sentencing range that has
“subsequently been lowered” by the Sentencing Commission. See 18 U.S.C.
§ 3582(c)(1)(B), (c)(2). During a § 3582(c)(2) proceeding, the district court may
only calculate the defendant’s amended guideline range, and it may not disturb any
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of its original factual findings. United States v. Cothran, 106 F.3d 1560, 1561-63
(11th Cir. 1997). Indeed, “all original sentencing determinations remain
unchanged with the sole exception of the guideline range that has been amended
since the original sentencing.” United States v. Bravo, 203 F.3d 778, 781 (11th
Cir. 2000) (emphasis in the original).
Amendment 706, which has been made retroactive, amends the Drug
Quantity Table in U.S.S.G. § 2D1.1(c) “to provide a two-level reduction in base
offense levels for crack cocaine offenses.” United States v. Moore, 541 F.3d 1323,
1325 (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). However, if a
defendant is a career offender, his base offense level is determined under the
career-offender guideline in U.S.S.G. § 4B1.1(b) and not the drug-quantity
guideline in § 2D1.1(c). Moore, 541 F.3d at 1327-28.
McKinnies’s arguments are foreclosed by precedent. We recently held that
defendants who are sentenced under the career-offender guideline are not
sentenced under U.S.S.G. § 2D1.1, and are, therefore, ineligible for a § 3582(c)(2)
sentence reduction pursuant to Amendment 706. See Moore, 541 F.3d at 1327-28.
McKinnies’ remaining arguments are likewise barred by precedent. See United
States v. Jones, 548 F.3d 1366, 1369 (11th Cir. 2008) (holding that Booker does
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not, by itself, permit a district court to impose a § 3582(c)(2) sentence reduction);
Cothran, 106 F.3d at 1561-63 (barring the district court from re-examining factual
findings made during the original sentencing proceedings). Accordingly, we
hereby affirm the district court’s decision.
AFFIRMED.1
1
McKinnies’s motion to file his reply brief out of time is GRANTED.
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