[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10725 ELEVENTH CIRCUIT
JULY 15, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 02-80051-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HAROLD JOHNSON,
a.k.a. Baldhead,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 15, 2009)
Before BARKETT, WILSON and FAY, Circuit Judges.
PER CURIAM:
Harold Johnson appeals the district court’s denial of his pro se 18 U.S.C.
§ 3582(c)(2) motion for reduction of sentence based on Amendment 706. Johnson
is a federal prisoner previously convicted of conspiracy to possess with intent to
distribute over 50 grams of cocaine base, in violation of 21 U.S.C. § 846. The
district court denied Johnson’s motion because Johnson was sentenced as a career
offender under U.S.S.G. § 4B1.1, and therefore Amendment 706 did not change his
Guidelines range.
On appeal, Johnson concedes that he was sentenced as a career offender and
that, per 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),
he was not eligible for § 3582 relief because his final sentencing range was based
on U.S.S.G.§ 4B1.1, not § 2D1.1. However, Johnson argues that the district court
erred as a matter of law in order to seek further review on the issue.
“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 reduce a term of imprisonment in
the case of a defendant who was 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). Any reduction, however, must be “consistent
with applicable policy statements issued by the Sentencing Commission.” Id. The
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applicable policy statements, found in § 1B1.10, state that a reduction of a term of
imprisonment is not authorized if the retroactive amendment does not have the
effect of lowering the defendant’s applicable Guideline range. U.S.S.G.
§ 1B1.10(a)(2)(B).
The district court did not err in refusing to reduce Johnson’s sentence
because Johnson was sentenced as a career offender pursuant to § 4B1.1. Moore,
541 F.3d at 1327 (holding that a defendant sentenced as a career offender pursuant
to § 4B1.1 is not entitled to § 3582 relief because Amendments 706 and 713 did
not lower the applicable guideline range for career offenders).
AFFIRMED.
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