[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 7, 2009
No. 08-13343 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 01-06075-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
COURTNEY WHEAT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 7, 2009)
Before DUBINA, Chief Judge, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Appellant Courtney Wheat appeals pro se the district court’s denial of his
motion for a reduced sentence, pursuant to 18 U.S.C. § 3582(c)(2) and Amendment
706. When Wheat was originally sentenced, he was classified as a career offender.
On appeal in this case, Wheat argues that the district court erred by failing to
consider the 18 U.S.C. § 3553(a) factors to determine the appropriate sentence to
impose and did not address whether the sentence was greater than necessary.
Further, he asserts that the district court failed to consider his post-conviction
rehabilitation, as required by U.S.S.G. § 1B1.10(b).
“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. Jones, 548 F.3d 1366,
1368 (11th Cir. 2008), cert. denied, 129 S. Ct. 1657 (2009). 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 has subsequently been
lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Amendment 706
to the Sentencing Guidelines reduced base offense levels for crack cocaine
offenses. Jones, 548 F.3d at 1368. If the district court sentences the defendant as a
career offender under U.S.S.G. § 4B1.1 and the sentencing range is not affected by
U.S.S.G. § 2D1.1, then the sentence is not “based on a sentencing range that has
subsequently been lowered.” United States v. Moore, 541 F.3d 1323, 1327-28
(11th Cir. 2008), cert. denied, 129 S. Ct. 1601 (2009) (quoting 18 U.S.C. §
2
3582(c)). When the base offense levels under § 2D1.1 play no role in the
calculation of the career offender range for the defendant, even though Amendment
706 is retroactive, the district court is not authorized to reduce the sentence. Id. at
1330.
After reviewing the record, we conclude that the district court correctly
determined that it lacked jurisdiction to reduce Wheat’s sentence because it
sentenced Wheat as a career offender, and therefore his guideline range was not
changed by Amendment 706. Wheat’s argument that the district court failed to
consider the sentencing factors or his post-sentencing rehabilitation incorrectly
assumes that the district court had jurisdiction to reduce his sentence. Accordingly,
we affirm the district court’s order denying Wheat’s motion to reduce his sentence.
AFFIRMED.
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