[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15394 ELEVENTH CIRCUIT
OCTOBER 16, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 04-00079-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KAVON WALTER MOSLEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(October 16, 2009)
Before DUBINA, Chief Judge, WILSON and FAY, Circuit Judges.
PER CURIAM:
Appellant Kavon Walter Mosley, a pro se federal prisoner, appeals the
district court’s denial of his motion for a sentence reduction under 18 U.S.C.
§ 3582(c)(2). Mosley’s motion was based on Amendment 706, which lowered the
base offense levels applicable to certain crack cocaine sentences. The district court
denied the motion, finding that Mosley was sentenced as a career offender under
U.S.S.G. § 4B1.1. On appeal, Mosley argues that the district court did not
sentence him as a career offender because his sentence of 274 months’
imprisonment was below the mandatory minimum 300-month sentence found in
U.S.S.G. § 4B1.1(b)(B), and therefore he was eligible for a sentence reduction.
Mosley contends that the district court also erred in refusing to consider the 18
U.S.C. § 3553(a) factors. Finally, Mosley argues that if the district court originally
sentenced him as a career offender, that classification was incorrect.
“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). 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.” United States v.
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Moore, 541 F.3d 1323, 1325 (11th Cir. 2008), cert. denied, McFadden v. United
States, 129 S. Ct. 965 (2009), and cert. denied, 129 S. Ct. 1601 (2009). 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. Therefore, Amendment 706 has no effect on a career
offender’s applicable guideline range. Id. The offense level for a defendant who
qualifies as a career offender is determined according to the statutory maximum for
his underlying crime. U.S.S.G. § 4B1.1(b). In United States v. Moreno, 421 F.3d
1217, 1220 (11th Cir. 2005), we explained that, under section 3582(c)(2), all
“original sentencing determinations remain unchanged with the sole exception of
the guideline range that has been amended since the original sentencing.” (internal
quotation marks omitted).
Because the district court sentenced Mosley as a career offender,
Amendment 706 to the Sentencing Guidelines did not lower his guidelines range,
and he was not entitled to resentencing under 18 U.S.C. § 3582(c)(2). As such, the
district court did not have authority to consider the § 3553(a) factors. Additionally,
Mosley’s challenge to his original designation as a career offender is misplaced
because, during a § 3582(c)(2) proceeding, the district court may not disturb any of
its original factual findings. Accordingly, we affirm the district court’s order
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denying Mosley a sentence reduction.
AFFIRMED.
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