FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 30, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-16502

Non-Argument Calendar

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D. C. Docket No. 04-60232-CR-KAM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STEVEN EUGENE,

a.k.a. Steven Eugene Lousley,

a.k.a. Louie,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(April 30, 2009)

Before TJOFLAT, DUBINA and FAY, Circuit Judges.

PER CURIAM:
Steven Eugene, who was convicted of crack cocaine offenses, appeals

through counsel the denial of his pro se motion for modification of sentence,

pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706. The district court denied

the motion because Eugene’s base offense level was determined using the career

offender guideline, U.S.S.G. § 4B1.1, rather than U.S.S.G. § 2D1.1. Eugene

argues that he nevertheless was eligible for a reduction because the district court

rejected his career offender guideline imprisonment range and granted a downward

variance. For the reasons set forth below, 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). 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). Amendment 706, which was made

retroactive by Amendment 713, reduced the offense levels in § 2D1.1 for crack

cocaine offenses by two levels. See U.S.S.G. App. C, Amends. 706, 713 (2008).

Any sentence reduction, however, must be “consistent with applicable policy

statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The

applicable policy statements provide that “a reduction in the defendant’s term of

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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)).

The district court did not err in denying Eugene’s motion. See James, 548

F.3d at 984. The record demonstrates that Eugene’s base offense level initially

was set at 28, pursuant to § 2D1.1, and criminal history category at VI. Because he

qualified as a career offender, however, his base offense level was changed to 34,

pursuant to § 4B1.1, and his criminal history category stayed at VI. Thus, his

guideline imprisonment range was 262 to 327 months. At sentencing, the district

court adopted the PSI calculations, but granted a downward variance and sentenced

Eugene to 192 months’ imprisonment. The district court cited the 18 U.S.C.

§ 3553(a) factors and particularly was influenced by Eugene’s troubled childhood.

Because Eugene’s guideline imprisonment range was calculated using

§ 4B1.1 rather than § 2D1.1, Amendment 706’s changes to § 2D1.1 did not affect

his sentence. See United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008),

cert. denied, McFadden v. United States, 129 S.Ct. 965 (2009), and cert. denied,

(U.S. Mar. 9, 2009) (“Where a retroactively applicable guideline amendment

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reduces a defendant’s base offense level, but does not alter the sentencing range

upon which his or her sentence was based, § 3582(c)(2) does not authorize a

reduction in sentence.”). The district court’s grant of a downward variance does

not change this conclusion. There is no evidence that the district court rejected the

career offender guideline imprisonment range or otherwise based its sentence on

the guideline imprisonment range that used § 2D1.1. See Moore, 541 F.3d at

1329-30. Rather, the district court simply granted a variance, based on its

consideration of the § 3553(a) factors and Eugene’s troubled childhood, from the

career offender guideline imprisonment range. Indeed, the sentence imposed was

not even within the guideline imprisonment range that used § 2D1.1(a)(3), which

would have been 140 to 165 months. Thus, Eugene was not eligible for a

reduction, and we affirm.

AFFIRM.

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