FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 9, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-15960

Non-Argument Calendar

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D. C. Docket No. 01-10037-CR-FAM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SEDRICK BROOKS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(April 9, 2009)

Before TJOFLAT, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

In United States v. Brooks, 93 Fed.Appx. 903, PIN (11 Cir. 2002), we

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affirmed appellant’s prison sentence of 168 months on a plea of guilty to

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distribution of at least five grams of cocaine base (“crack cocaine”), in violation of

21 U.S.C. § 841(a). On March 6, 2006, appellant moved the district court to

reduce his sentence under 18 U.S.C. § 3582(c) based on Amendment 706 to the

Sentencing Guidelines, which reduced the base offense levels applicable to crack

cocaine offenses. The court denied his motion on the ground that, having been

sentenced as a career offender under U.S.S.G. § 4B1.1, he was not eligible for

relief under Amendment 706. He now appeals, arguing that he was eligible for

relief because at his sentencing, the court departed downward from the Guidelines

sentence range based on its finding that his criminal history category substantially

overrepresented his criminal record; hence, he was not sentenced as a career

offender. He also argues that the court had the authority to reduce his sentence in

accordance with the Supreme Court’s decision in United States v. Booker, 543

U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

A district court may reduce the sentence “of a defendant who has been

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

 The Guidelines prescribed a sentence range of 168 to 210 months’ imprisonment. 1

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statements issued by the Sentencing Commission.” Id. The applicable policy

statements provide that “a reduction in the defendant’s term of imprisonment is not

authorized under 18 U.S.C. 3582(c)(2) and is not consistent with this policy

statement if . . . [a retroactive 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 or statutory

provision.” U.S.S.G. § 1B1.10, comment. (n.1(A)).

Here, although, at sentencing, the court departed downward in arriving at

appellant’s criminal history category, his offense level was calculated by

application of the career offender provision. Accordingly, the applicable sentence

range was not affected by Amendment 706, and he is ineligible for sentence

reduction. See 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, (U.S.

Mar. 9, 2009) (No. 08-8554). Booker provides appellant no assistance because it

does not apply to § 3582(c)(2) proceedings. Therefore, the court was bound by the

limitations imposed by U.S.S.G. § 1B1.10. See United States v Melvin, No. 08-

13497, manuscript op. at 7 (11th Cir. Feb. 3, 2009) (holding that Booker does not

“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”),

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petition for cert. filed, (U.S. Feb. 10, 2009) (No. 08-8664).

AFFIRMED.

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