[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14096 ELEVENTH CIRCUIT
AUGUST 5, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 00-00079-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLYDE MCGHEE,
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:
Clyde McGhee, proceeding pro se, appeals the district court’s denial of his
motion for reduction of sentence, filed pursuant to 18 U.S.C. § 3582(c)(2).
McGhee’s motion was based on Amendment 706 to the United States Sentencing
Guidelines, which reduced base offense levels applicable to crack cocaine. On
appeal, McGhee argues that based on the Supreme Court’s decisions in United
States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and
Kimbrough v. United States, __ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007),
the district court erred in determining that it did not have the discretion or
authorization to reduce his sentence pursuant to § 3582. McGhee contends that
anyone who was sentenced under U.S.S.G. § 2D1.1 for a crime involving crack
cocaine is eligible for a two-level reduction, regardless of whether they were
sentenced as a career offender, because the crack-cocaine guideline calculations
were the starting point for every sentence.
“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 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
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Commission.” Id.
Here, the district court did not err in denying McGhee’s § 3582(c)(2) motion
because McGhee qualified as a career offender under U.S.S.G. § 4B1.1 and
therefore his guideline range was not lowered by Amendment 706. See United
States v. Moore, 541 F.3d 1323, 1327-28 (11th Cir. 2008) (“[A] reduction under
§ 3582(c)(2) is not authorized where ‘the amendment . . . is applicable to the
defendant but the amendment does not have the effect of lowering the defendant’s
applicable guideline range because of the operation of another guideline . . . .’”
(quoting U.S.S.G. § 1B1.10, comment. (n.1(A)) (emphasis in original)) (cert.
denied, McFadden v. United States, 129 S.Ct. 965 (2009), and cert. denied, (U.S.
Mar. 9, 2009) (No. 08-8554). Although McGhee was a career offender, his
applicable guideline range at sentencing was determined by his base offense level
in § 2D1.1, because his otherwise applicable offense level of 38 was greater than
the offense level prescribed by § 4B1.1, the career-offender guideline. When the
Amendment is applied to that guidelines level, it is lowered to 36. At that point,
however, the guidelines instruct that the career offender guidelines’ level of 37
should be applied because it is a higher level. U.S.S.G. 4B1.1(b) (“if the offense
level for a career offender from the table in this subsection is greater than the
offense level otherwise applicable, the offense level from the table in this
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subsection shall apply.”). With McGhee’s criminal history level of VI, the
guidelines range remains unchanged at 360 months to life.
Furthermore, McGhee’s argument that the Supreme Court’s decisions in
Booker and Kimbrough gave the district court the authority to reduce his sentence
is foreclosed by precedent. See United States v. Melvin, 556 F.3d 1190, 1192-93
(11th Cir. 2009) (holding that neither Booker nor Kimbrough “prohibit the
limitations on a judge’s discretion in reducing a sentence imposed by § 3582(c)(2)
and the applicable policy statement by the Sentencing Commission”), cert. denied,
(U.S. May 18, 2009) (No. 08-8664). Accordingly, we affirm.
AFFIRMED.
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