[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Oct. 7, 2009
No. 08-16927 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 99-10030-CR-SH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARVIN SMITH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 7, 2009)
Before EDMONDSON, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Marvin Smith, a federal prisoner convicted of a crack cocaine offense,
appeals the denial of his motion for a sentence reduction, 18 U.S.C. § 3582(c)(2),
based on Amendment 706 to the Sentencing Guidelines. The district court
determined that Smith was ineligible for relief under Amendment 706 because he
had been sentenced as a career offender. No reversible error has been shown; we
affirm.
On appeal, Smith argues that, despite his career offender status, he was
eligible for a sentence reduction under Amendment 706 because -- after United
States v. Booker, 125 S.Ct. 738 (2005) -- the advisory nature of the guidelines
gave the court discretion to lower his sentence. We review de novo the district
court’s legal conclusions about the scope of its authority in a section 3582(c)(2)
proceeding. United States v. James, 548 F.3d 983, 984 (11th Cir. 2008).
Amendment 706 -- which became retroactive on 3 March 2008, U.S.S.G.
App. C, Amend. 713 (Supp. 1 May 2008) -- reduced by two the base offense levels
in crack cocaine sentences calculated pursuant to the drug quantity table, U.S.S.G.
§ 2D1.1(c). But a defendant who is sentenced pursuant to the career offender
guideline, U.S.S.G. § 4B1.1, is ineligible for a sentence reduction under
Amendment 706. United States v. Moore, 541 F.3d 1323, 1327 (11th Cir. 2008),
2
cert. denied, McFadden v. United States, 129 S.Ct. 965 (2009), and cert. denied,
129 S.Ct. 1601 (2009) (concluding that the district court had no authority to reduce
the sentence of a defendant who was sentenced as a career offender). So here, the
district court committed no error in denying Smith’s section 3582(c)(2) motion
given that he was sentenced based on the offense level for the career offender
guideline instead of the offense level for drug quantity.
While Smith argues that Moore was decided incorrectly, neither this Court
sitting en banc nor the Supreme Court has overruled it. See United States v. Vega-
Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008), petition for cert. filed (U.S. Feb.
10, 2009) (No. 08-8655) (explaining that we are bound to follow our prior
precedent “unless and until it is overruled by this court en banc or by the Supreme
Court).” And Smith’s argument that Booker allows the district court to reduce his
sentence is unavailing. Smith was ineligible for a sentence reduction under
Amendment 706; and Booker does not, by itself, permit a court to impose a section
3582(c)(2) sentence reduction. United States v. Jones, 548 F.3d 1366, 1369 (11th
Cir. 2008).
AFFIRMED.
3