[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 23, 2009
No. 08-16301 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 00-14086-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY J. SANDERS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 23, 2009)
Before BIRCH, HULL and WILSON, Circuit Judges.
PER CURIAM:
Anthony J. Sanders, a federal prisoner convicted of a crack cocaine offense
and sentenced as a career offender, appeals the district court’s denial of his pro se
18 U.S.C. § 3582(c)(2) motion for reduction of sentence. Sanders based his
motion on Amendment 706 to U.S.S.G. § 2D1.1, which lowered the base offense
levels applicable to crack cocaine offenses. Because Sanders was sentenced as a
career offender under U.S.S.G. § 4B1.1, Amendment 706 did not have the effect of
lowering his guideline range, as required for relief under 18 U.S.C. § 3582(c)(2).
As a result, we affirm the district court’s denial of Sanders’s motion.
I. BACKGROUND
In 2001, Sanders pled guilty to one count of possession with intent to
distribute more than five grams of cocaine base, in violation of 21 U.S.C. §
841(a)(1). Sanders’s base offense level was 30 pursuant to U.S.S.G. § 2D1.1.
However, Sanders was also classified as a career offender under U.S.S.G. § 4B1.1
because he was at least 18 years old at the time of the instant offense, the instant
offense was a felony drug offense, and Sanders had at least two prior felony
convictions for controlled substance offenses. Since the statutory maximum term
of imprisonment for a violation of 21 U.S.C. § 841(a)(1) is 40 years imprisonment,
the career offender guideline requires a base offense level of 34. See U.S.S.G. §
4B1.1(b). Sanders then received a downward departure of three levels for timely
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acceptance of responsibility, resulting in a total offense level of 31. Sanders’s
sentencing range was 188 to 235 months of imprisonment, and the district court
sentenced Sanders to 188 months.
II. STANDARDS OF REVIEW
“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).
III. DISCUSSION
A district court may modify a sentence “in the case of a defendant who has
been sentenced . . . based on a sentencing range that has subsequently been
lowered by the Sentencing Commission . . . .” § 3582(c)(2) (emphasis added). In
such a case, the court may reduce the defendant’s sentence after considering
applicable § 3553(a) factors, “if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.” Id. A reduction is not
consistent with applicable policy statements and is not authorized if the retroactive
amendment does not have the “effect of lowering the defendant’s applicable
guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). The retroactive amendment at issue
here is Amendment 706, which reduces the base offense levels for crack cocaine
offenses sentenced under U.S.S.G. § 2D1.1.
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Sanders concedes that this Court previously decided the issue on appeal in
United States v. Moore, 541 F.3d 1323 (11th Cir. 2008), cert. denied, McFadden v.
United States, 129 S. Ct. 965 (2009), and cert. denied, 129 S. Ct. 1601
(Mar. 9, 2009). Moore involved several defendants convicted of crack cocaine
offenses who were sentenced under the career offender guideline § 4B1.1. In
Moore, we held that a defendant whose original sentence was based ultimately on
something other than the offense level calculation under § 2D1.1, such as the
career offender guideline section of § 4B1.1, cannot receive a sentence reduction
because Amendment 706 does not have the “effect” of lowering the applicable
guideline range. Moore, 541 U.S. at 1327–28. That is, a defendant cannot obtain
relief under § 3582(c)(2) if his sentence was based on the career offender guideline
because Amendment 706 would not have reduced his sentence. Id. at 1330.
Sanders’s conviction was based ultimately on the career offender guideline,
rather than the offense level calculation under § 2D1.1. A career offender’s base
offense level is determined with regard to the statutory maximum sentence for the
offense of conviction. U.S.S.G. § 4B1.1. Therefore, Sanders offense level was
based on § 4B1.1, which calculated a base offense level of 34 after taking into
regard the statutory maximum sentence for Sanders’s offense of conviction.
Consequently, Amendment 706 to § 2D1.1 does not have the effect of lowering
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Sanders’s sentencing range, and the district court could not reduce his sentence.
Sanders argues that Moore was decided wrongly. He asserts that regardless
of whether the career offender guideline range was affected by Amendment 706,
the district court must still consider § 3553(a), which requires that certain factors
be taken into account in imposing a sentence on a defendant. However, §
3582(c)(2) does not give a district court unfettered authority to reduce a
defendant’s sentence. Instead, the court must determine the amended guideline
range that would have been applicable to the defendant if Amendment 706 had
been in effect at the time Sanders was sentenced. U.S.S.G. § 1B1.10 (b)(1). A
court shall only substitute the amendments that have been listed for retroactive
application and “shall leave all other guideline application decisions unaffected.”
Id. If the application of a retroactive amendment did not have the effect of
lowering the defendant’s sentencing range, then the district court has no
jurisdiction to reduce a defendant’s sentence. Therefore, the district court could
not analyze the factors under § 3553(a) unless it first determined that Amendment
706 had the effect of lowering the defendant’s sentencing range. See § 3582(c)(2).
In Moore, we explicitly held that Amendment 706 did not have the effect of
lowering a defendant’s applicable guideline range if the defendant was sentenced
as a career offender under § 4B1.1. Moore, 541 F.3d at 1325. Moore remains
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valid authority for a defendant sentenced under the career offender guideline. We
may “depart from a prior panel decision based upon an intervening Supreme Court
decision . . . if that decision actually overruled or conflicted with it” or if, sitting en
banc, we overrule the decision. United States v. Marte, 356 F.3d 1336, 1344 (11th
Cir. 2004) (quotation omitted).
Sanders did not qualify for the Amendment 706 reduction because he was a
career offender, and the district court did not need to consider the § 3553(a) factors
because it lacked the authority to grant any reduction. We may not depart from
Moore because it has not been overruled by the Supreme Court or by this Court
sitting en banc.
AFFIRMED.
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