[DO NOT PUBLISH]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. 09-11022 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 99-00060-CR-ORL-18-DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH L. BUSH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 21, 2009)
Before HULL, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Kenneth L. Bush, through counsel, appeals the district court’s denial of 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 1999, Bush pled guilty to one count of possession with intent to distribute
crack cocaine, in violation of 21 U.S.C. § 841(a)(1). The probation officer
prepared a pre-sentence investigation report (“PSI”) and determined that Bush was
accountable for 95.1 grams of crack cocaine, giving him a base offense level of 32.
However, the probation officer found that Bush was a career offender under
U.S.S.G. § 4B1.1, and because the statutory maximum penalty was life
imprisonment, he received a new offense level of 37. The probation officer then
applied a 3-level reduction for acceptance of responsibility, giving Bush a total
offense level of 34. Bush’s status as a career offender gave him a criminal history
category of VI which, when coupled with his offense level of 34, gave him an
applicable guideline range of 262 to 327 months’ imprisonment. At sentencing,
the district court adopted the probation officer’s guideline calculations and
sentenced Bush to 262 months’ imprisonment. We affirmed Bush’s sentence on
direct appeal.
In October 2008, Bush filed a pro se motion for a sentencing reduction,
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pursuant to 18 U.S.C. § 3582(c)(2). He argued, inter alia, that, regardless of his
status as a career offender, he was eligible for a sentencing reduction because
Amendment 706 lowered his underlying base offense level. The court then
appointed Bush counsel, who submitted a memorandum acknowledging that Bush
was ineligible for a sentencing reduction under United States v. Moore, 541 F.3d
1323 (11th Cir. 2008), cert. denied, McFadden v. United States, 129 S.Ct. 965, and
cert. denied, 129 S.Ct. 1601 (2009). Nonetheless, counsel challenged Moore’s
rationale and argued that the decision was wrongly decided. The district court
ultimately denied Bush’s motion as follows: “The Eleventh Circuit’s decision in
Moore is binding on this Court, and Defendant’s case falls squarely within its
holding. Defendant’s sentence was not based on a sentencing range that has been
subsequently lowered by the Sentencing Commission because he was sentenced as
a career offender under U.S.S.G. § 4B1.1.” This appeal followed.
II.
“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). 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
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the Sentencing Commission . . . .” 18 U.S.C. § 3582(c)(2). Any such reduction
must also be consistent with the Commission’s applicable policy statement in
U.S.S.G. § 1B1.10. See id.
III.
In this case, Bush correctly acknowledges on appeal that he was ineligible
for a sentencing reduction under Moore because, although Amendment 706 would
reduce his base offense level, that base offense level was superseded when he was
sentenced as a career offender under § 4B1.1. See Moore, 541 F.3d at 1330
(“Where a retroactively applicable guideline amendment reduces a defendant's
base offense level, but does not alter the sentencing range upon which his or her
sentence was based, § 3582(c)(2) does not authorize a reduction in sentence.”).1
In addition, we decline Bush’s invitation to revisit the district court’s
original calculation of his statutory maximum sentence. U.S.S.G. § 1B1.10(b)(1)
(“[T]he court shall substitute only the amendments listed in subsection (c) for the
corresponding guideline provisions that were applied when the defendant was
sentenced and shall leave all other guideline application decisions unaffected.”);
see United States v. Melvin, 556 F.3d 1190, 1190 (11th Cir. 2009) (“hold[ing] that
a district court is bound by the limitations on its discretion imposed by
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Bush’s reliance on arguments presented in unrelated petitions requesting this Court to
reconsider Moore en banc is without merit, as this Court has recently denied those petitions.
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§ 3582(c)(2) and the applicable policy statements by the Sentencing Commission”)
(emphasis added), cert. denied, (U.S. May 18, 2009) (No. 08-8664). Accordingly,
we affirm.
AFFIRMED.
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