United States v. Danilo Isidoro Suarez

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 5, 2009
No. 08-16913 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 05-10031-CR-SH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANILO ISIDORO SUAREZ,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(August 5, 2009)

Before CARNES, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

Daniel Isidoro Suarez, through counsel, appeals the district court’s denial of
his pro se motion for a reduced sentence, which was filed pursuant to 18 U.S.C.

§ 3582(c)(2), and the denial of his motion for reconsideration. Suarez’s

§ 3582(c)(2) motion was based on Amendment 706 to the sentencing guidelines,

which reduced the base offense levels applicable to certain crack cocaine offenses.

On appeal, Suarez argues that he was eligible for a sentence reduction because

even though he was sentenced a career offender, the controlling precedent, United

States v. Moore, 541 F.3d 1323 (11th Cir. 2008), cert. denied (Jan. 12, 2009) (No.

08-7610), was wrongly decided. Specifically, he maintains that Moore is wrong

because, under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d

621 (2005), and its progeny, the guidelines are not mandatory, and the district

court has the discretion to consider that the Sentencing Commission has now

retroactively lowered by two levels the crack offense guidelines. Suarez also

contends that the district court possesses the discretion after considering the

§ 3553(a) factors, in conjunction with Booker and Kimbrough v. United States,

552 U.S. __, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), to give him the benefit of the

retroactive amendments to the crack offense guidelines.

“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

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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, which has been made

retroactive, amended the drug quantity table in § 2D1.1(c) “to provide a two-level

reduction in base offense levels for crack cocaine offenses.” Moore, 541 F.3d at

1325. However, if a defendant is a career offender, his base offense level is

determined under the career offender guideline in § 4B1.1(b) and not the drug

quantity guideline in § 2D1.1(c). Id. at 1327-28. Defendants who are sentenced

under the career offender guideline are not sentenced under § 2D1.1, and therefore

Amendment 706 has no effect on their applicable guideline range. Id.

Additionally, we have deemed Booker and Kimbrough inapplicable to § 3582(c)(2)

proceedings. United States v. Melvin, 556 F.3d 1190, 1192-93 (11th Cir. 2009)

(per curiam), cert. denied (May 18, 2009)(No. 08-8664). We are bound to follow

our prior binding precedent “unless and until it is overruled by this [C]ourt en banc

or by the Supreme Court.” United States v. Vega-Castillo, 540 F.3d 1235, 1236

(11th Cir. 2008), cert. denied (No. 08-8655) (U.S. May 18, 2009).

Because Suarez was sentenced as a career offender under § 4B1.1, the crack

cocaine base offense level played no ultimate role in his sentence, and therefore,

the district court correctly determined that he was not eligible for a § 3582(c)(2)

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sentence reduction. Accordingly, we affirm.

AFFIRMED.1

1
Suarez’s request for oral argument is denied.

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