[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14159 ELEVENTH CIRCUIT
JULY 8, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 99-00017-CR-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNY RAY KIRKLAND,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(July 8, 2009)
Before HULL, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Johnny Ray Kirkland, proceeding pro se, appeals the district court’s denial
of his motion for a reduced sentence, pursuant to 18 U.S.C. § 3582(c)(2) and
Amendment 706. Kirkland’s § 3582(c)(2) motion was based on Amendment 706
to the Sentencing Guidelines, which reduced base offense levels applicable to
crack cocaine. On appeal, Kirkland argues that the district court erred in denying
his motion for a sentence reduction, despite his status as a career offender.
Kirkland asserts that he was eligible because, even though the court increased his
offense level under U.S.S.G. § 4B1.1, the court derived his base offense level from
U.S.S.G. § 2D1.1. Additionally, he contends the court should have reduced his
sentence based on his post-sentencing rehabilitative efforts and because the
guidelines are advisory under United States v. Booker, 543 U.S. 220, 125 S.Ct.
738, 160 L.Ed.2d 621 (2005). He also argues that the district court had discretion
to reduce his sentence because he received a departure pursuant to U.S.S.G.
§ 5K1.1 for substantial assistance.
In a § 3582(c)(2) proceeding, “we review de novo the district court’s legal
conclusions regarding the scope of its authority under the Sentencing Guidelines.”
United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002). “We review de
novo questions of statutory interpretation.” United States v. Maupin, 520 F.3d
1304, 1306 (11th Cir. 2008). A district court may modify a term of imprisonment
in the case of a defendant who was sentenced to a term of imprisonment based on a
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sentencing range that has subsequently been lowered by the Sentencing
Commission. 18 U.S.C. § 3582(c)(2). In United States v. Moore, 541 F.3d 1323
(11th Cir. 2008), cert. denied, (U.S. Mar. 9, 2009) (No. 08-8554), we held that if
the defendant was sentenced as a career offender under § 4B1.1 and the range was
not affected by U.S.S.G. § 2D1.1, then the sentence is not “based on a sentencing
range that has subsequently been lowered.” 541 F.3d at 1327-28. We noted that
the base offense levels under § 2D1.1 played no role in the calculation of the career
offender range for the defendant. Id. at 1327. Thus, even though Amendment 706
was retroactive, the district court was not authorized to reduce the sentence. Id. at
1330. We held that this result was the same when a defendant received a
downward departure for his substantial assistance under U.S.S.G. § 5K1.1 and 18
U.S.C. § 3553(a), stating that there was “no basis for concluding that the reduction
of [the defendant’s] base offense level lowered the sentencing range relied upon by
the district court in determining his sentence.” Id.
Just as in Moore, Kirkland’s sentencing range was determined by his career
offender status under U.S.S.G. § 4B1.1 and his crack cocaine base offense level
played no ultimate role in his sentence. Thus, Kirkland was not sentenced under
the otherwise applicable base offense level in U.S.S.G. § 2D1.1, and he is
ineligible for relief under Amendment 706. See Moore, 541 F.3d at 1327, 1330;
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U.S.S.G. § 1B1.10, comment. (n.1(A)) (prohibiting reduction where “amendment
does not have the effect of lowering the defendant’s applicable guideline range
because of the operation of another guideline”). This outcome is not changed by
the fact that Kirkland received a departure under U.S.S.G. § 5K1.1 for substantial
assistance because there is no indication that the court based his sentence on the
guideline range that would have applied absent the career offender designation.
See Moore, 541 F.3d at 1330. Further, Kirkland could not rely solely on Booker or
his rehabilitative efforts as an independent basis for relief under § 3582(c)(2). See
United States v. Melvin, 556 F.3d 1190, 1192-93 (11th Cir. 2009), cert. denied,
(U.S. May 18, 2009) (No. 08-8664) (holding that Booker does not render a
guideline range advisory in the context of a § 3582 proceeding, whether or not the
guideline range is reduced by a sentencing amendment); United States v. Moreno,
421 F.3d 1217, 1220-21 (11th Cir. 2005) (holding that Booker did not provide a
jurisdictional basis for § 3582 relief because it was not a sentencing amendment
and that § 3582 only provides a district court with the discretion to reduce a
sentence following the lowering of a sentencing range by the Sentencing
Commission). Accordingly, we affirm.
AFFIRMED.
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