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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12325
Non-Argument Calendar
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D.C. Docket No. 1:06-cr-00326-LSC-HGD-1
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
versus
GERALD SMITH, JR.,
Defendant – Appellant.
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Appeal from the United States District Court
For the Northern District of Alabama
_____________________________
(April 9, 2013)
Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
On January 7, 2007, Gerald Smith, having pled guilty to distribution of five
grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), was
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sentenced to a prison term of 235 months. In November 2008, Smith moved the
District Court pursuant to 18 U.S.C. § 358 (c)(2) to reduce his sentence based on
Amendment 706 to the Sentencing Guidelines relating to crack cocaine, U.S.S.G. §
2D.1. The court denied his motion because the Guidelines sentence range,
pursuant to which he had been sentenced, was not changed by the application of
Amendment 706. That is, because he had previously been convicted of at least two
controlled substance offenses, he had been sentenced pursuant to U.S.S.G. §
4B1.1(b)(B), as a career offender, rather than § 2D1.1.
In January 2012, Smith filed a second § 3582(c)(2) motion for the reduction
of his sentence based on Amendment 750 to the Guidelines, what Smith labeled
the “permanent amendment” to U.S.S.G. § 2D.1. The court denied his motion, and
he appeals.
We affirm the District Court’s ruling on the ground that Amendment 750
does not apply in this case. As noted above, Smith’s sentence was imposed
pursuant to the career offender guideline, § 4B1.1(b)(B), not § 2D1.1.
Accordingly, Amendment 750’s lowering of the § 2D1.1 base offense level “would
not lower the sentencing range upon which [Smith’s] sentence was based. United
States v. Moore, 541 F.3d 1323, 1327 (11th Cir. 2008) (affirming the denial of §
3582(c)(2) relief based on Amendment 706 where defendant was sentenced as a
career offender).
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AFFIRMED.
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