FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 APRIL 12, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-14676

Non-Argument Calendar

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D. C. Docket No. 04-00288-CR-T-26-MAP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CLARENCE SHAMEIN FITZGERALD,

a.k.a. Jermaine,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(April 12, 2010)

Before MARCUS, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

Clarence Shamein Fitzgerald appeals the district court’s order denying his

18 U.S.C. § 3582(c)(2) motion for a sentence reduction based on Amendment 706
to the Sentencing Guidelines. On appeal, Fitzgerald: (1) concedes that he was

originally sentenced as a career offender, but asserts that career offenders are not

precluded from receiving sentence reductions under Amendment 706, and that our

decision 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

(2009), was wrongly decided; and (2) argues for the first time on appeal that

Congress’s failure to amend the Sentencing Guidelines to reduce the disparity

between crack and powder cocaine offenses violates the equal protection

component of the Due Process Clause of the Fifth Amendment. After thorough

review, we affirm.

“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).

Section 3582(c)(2) gives federal courts the authority to consider reducing 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). In Moore, we held that defendants

sentenced under the career offender guideline, U.S.S.G. § 4B1.1(b), are ineligible

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for sentence reductions under Amendment 706 because that amendment did not

have the effect of reducing their guideline range. Moore, 541 F.3d at 1327-30.

Fitzgerald was originally sentenced under the career offender guideline,

U.S.S.G. § 4B1.1(b). Therefore, in light of our decision in Moore, he was not

eligible for a sentence reduction under Amendment 706. Although Fitzgerald

asserts that Moore was wrongly decided, we are bound by our prior holding until it

is overruled by the Supreme Court or by a panel of this Court sitting en banc. See

United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). Because Fitzgerald

was sentenced as a career offender, the district court correctly concluded that he

was not eligible for a sentence reduction based on Amendment 706.

As for Fitzgerald’s equal protection argument, we have explained that a §

3582(c)(2) proceeding “does not constitute a de novo resentencing” and does not

permit the district court to address “extraneous resentencing issues” such as

constitutional claims. United States v. Bravo, 203 F.3d 778, 781-82 (11th Cir.

2000) (holding that the district court properly declined to consider defendant’s

Eighth Amendment claim in the context of a § 3582(c)(2) proceeding).

Accordingly, the district court did not plainly err by failing to sua sponte grant a

sentence reduction on equal protection grounds.

AFFIRMED.

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