[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 31, 2009
No. 09-10911 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00257-CR-TWT-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID GOODEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 31, 2009)
Before TJOFLAT, EDMONDSON and BLACK, Circuit Judges.
PER CURIAM:
David Gooden, a federal prisoner proceeding with counsel, appeals the
denial of his pro se motion for a reduced sentence, pursuant to 18 U.S.C.
§ 3582(c)(2), based on Amendment 706 to the Sentencing Guidelines, which
reduced the base offense levels applicable to crack cocaine offenses. On appeal,
Gooden, who was sentenced as career offender, argues that, contrary to our holding
in United States v. Moore, 541 F.3d 1323, 1327-30 (11th Cir. 2008), cert. denied,
129 S. Ct. 1601 (2009), the plain language of 18 U.S.C. § 3553(a)(4) requires the
district court consider the sentencing range established for the offense committed,
which cannot be the career-offender range, as that range is an enhancement that
applies to many different types of offenses. Accordingly, he argues, he meets the
requirement of § 3582(c)(2) because he was sentenced to a term of imprisonment
based on a range that subsequently has been lowered.
“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 modify a term of imprisonment in the
case of a defendant who was sentenced to a term of imprisonment based on a
sentencing range that subsequently has 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
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Commission.” Id. The applicable policy statements, found in U.S.S.G. § 1B1.10,
prohibit a reduction where an “amendment does not have the effect of lowering the
defendant’s applicable guideline range because of the operation of another
guideline.” U.S.S.G. § 1B1.10, comment. (n.1(A)). Finally, we are bound to
follow our precedent unless it is overruled en banc or by the Supreme Court. See
United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).
Gooden’s sentence was based on the career-offender provisions in U.S.S.G.
§ 4B1.1, rather than the drug quantity table in U.S.S.G. § 2D1.1. Because
Gooden’s sentence did not rest on the provision regarding the quantity of crack
cocaine in U.S.S.G. § 2D1.1, which was amended under Amendment 706,
Amendment 706 did not have the effect of lowering his guideline range. Thus,
Gooden was ineligible for a sentence reduction. See Moore, 541 F.3d at 1330. As
to his argument that Moore was wrongly decided, we must follow our own
precedent. See Archer, 531 F.3d at 1352. Accordingly, we affirm.
AFFIRMED.
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