[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 21, 2009
No. 08-12442 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00084-CR-FTM-29-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERNARD JACKSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 21, 2009)
Before BLACK, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Bernard Jackson, proceeding pro se, appeals the district court’s order
denying his motion for a sentencing reduction, pursuant to 18 U.S.C. § 3582(c)(2).
For the reasons set forth below, we affirm.
I.
In 2003, Jackson pled guilty to one count of possession with intent to
distribute five grams or more of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B)(iii). The probation officer prepared a pre-sentence
investigation report (“PSI”) and determined that Jackson was responsible for
14.5 grams of crack cocaine, giving him a base offense level of 26, pursuant to
U.S.S.G. § 2D1.1(c)(7). However, the probation officer also determined that
Jackson was a career offender under U.S.S.G. § 4B1.1, which gave him a new,
superseding offense level of 34. After applying a 3-level reduction for acceptance
of responsibility, the probation officer determined that Jackson had a total offense
level of 31. Jackson’s status as a career offender gave him a criminal history
category of VI, which, when combined his offense level of 31, produced an
applicable guideline range of 188 to 235 months’ imprisonment.
At sentencing, the district court granted Jackson a two-level downward
departure to a criminal history category of IV. The district court, however,
declined to reduce Jackson’s offense level of 31. As a result, Jackson’s applicable
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guideline range became 151 to 188 months’ imprisonment, and the court sentenced
him to the low-end of that range.
In 2005, the district court granted the government’s motion to reduce
Jackson’s sentence based on his substantial assistance, pursuant to
Fed.R.Crim.P. 35(b). Specifically, the court imposed a four-level reduction in
Jackson’s offense level, lowering it from 31 to 27, which, when combined with a
criminal history category of IV, produced a new guideline range of 100 to 125
months’ imprisonment. The court sentenced Jackson to the low-end of that range.
On March 5, 2008, Jackson, relying on Amendment 706 to the Guidelines,
filed the instant pro se motion for a sentencing reduction, pursuant to 18 U.S.C.
§ 3582(c)(2). The district court denied the motion, concluding that, because
Jackson was sentenced as a career offender, Amendment 706 would not lower his
applicable guideline range. Jackson filed a motion for reconsideration, requesting
that the court reconsider its decision in light of United States v. Booker, 543 U.S.
220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Kimbrough v. United States, 552 U.S.
85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and 18 U.S.C. § 3553(a). The district
court denied the motion. This appeal followed.
II.
“We review de novo a district court’s conclusions about the scope of its
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legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d
983, 984 (11th Cir. 2008). Under § 3582(c)(2), a district court may modify a
defendant’s term of imprisonment where he “has been 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); see also U.S.S.G.
§ 1B1.10(a)(2)(B) (policy statement providing the same).
Construing this language of § 3582(c)(2), we held in United States v.
Moore that certain defendants who were sentenced as career offenders were
ineligible for a sentencing reduction under Amendment 706 because that
amendment would not reduce their applicable guideline ranges. 541 F.3d 1323,
1330 (11th Cir. 2008) (“[A]lthough Amendment 706 would reduce the base
offense levels applicable to the defendants, it would not affect their guideline
ranges because they were sentenced as career offenders under § 4B1.1.”),
cert. denied, 129 S.Ct. 969, and cert. denied, 129 S.Ct. 1601 (2009); see U.S.S.G.
§ 4B1.1(b) (providing for superseding offense levels based on the statutory
maximum penalty where those levels are “greater than the offense level otherwise
applicable”).
III.
In this case, Jackson was sentenced as a career offender and, therefore,
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Amendment 706 would not reduce his applicable guideline range.1 In addition,
Jackson’s reliance on Booker and its progeny is without merit, as those cases do
not independently authorize the district courts to grant a sentencing reduction
under § 3582(c)(2). See United States v. Jones, 548 F.3d 1366, 1369 (11th Cir.
2008), cert. denied, 129 S.Ct. 1657 (2009). Furthermore, we have held that,
despite Booker, the district courts remain bound by the policy statement in
§ 1B1.10. United States v. Melvin, 556 F.3d 1190, 1190 (11th Cir.), cert. denied
(U.S. May 18, 2009) (No. 08-8664). Thus, because Jackson was ineligible for a
sentencing reduction, the district court had no need to consider the § 3553(a)
factors. United States v. Webb, 565 F.3d 789, 793 (11th Cir. 2009). Accordingly,
we affirm.
AFFIRMED.
1
Notably, neither the district court’s downward departure at sentencing nor its subsequent
Rule 35 reduction affect this conclusion, as there was no indication that the court based its original
sentence or its Rule 35 sentence on the offense level that would have applied had Jackson not been
sentenced as a career offender. See Moore, 541 F.3d at 1329-30.
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