FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 APRIL 7, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-15225

Non-Argument Calendar

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D. C. Docket No. 02-80174-CR-KLR

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus

SAMMY LEE POTTS, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Florida

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(April 7, 2009)

Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:
Sammy Lee Potts appeals the district court’s denial of his motion to reduce

his sentence pursuant to 18 U.S.C. § 3582(c)(2). Potts was sentenced in

September 2003 to 200 months of imprisonment for possession with intent to

distribute at least five grams of crack cocaine, in violation of 21 U.S.C. §

841(a)(1). Even though he was sentenced as a career offender, Potts contends that

he is entitled to a sentence reduction because his base offense level was lowered

by Amendment 706 to the Sentencing Guidelines. After careful review, we

AFFIRM.

We review de novo a district court’s legal conclusions about the scope of its

authority under § 3582(c)(2). See United States v. Moore, 541 F.3d 1323, 1326

(11th Cir. 2008). We review the denial of a § 3582(c)(2) motion for abuse of

discretion. See United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005)

(per curiam). A district court has the authority to reduce a sentence based on a

guideline imprisonment range that has subsequently been lowered by the

Sentencing Commission. See 18 U.S.C. § 3582(c)(2). Amendment 706, effective

retroactively as of 3 March 2008, permits a two-level reduction in the base offense

levels under U.S.S.G. § 2D1.1(c) for certain crack cocaine offenses. See Moore,

541 F.3d at 1325. Amendment 706 does not affect the guideline ranges of

defendants sentenced as career offenders under U.S.S.G. § 4B1.1, however. See

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id. at 1330. Accordingly, even though Amendment 706 may reduce a defendant’s

base offense level under § 2D1.1(c), a defendant is not entitled to a sentence

reduction if he is sentenced as a career offender under § 4B1.1. See id. 

Moore controls the outcome of this case. Potts was sentenced as a career

offender under § 4B1.1 which yielded an offense level of 34. He was awarded a

three-level downward adjustment for timely accepting responsibility and assisting

authorities in the investigation or prosecution, resulting in a total offense level of

31. His offense level under the career offender section applied because it was

greater than his base offense level of 28 under § 2D1.1. See U.S.S.G. § 4B1.1(b)

(providing that “if the offense level for a career offender . . . is greater than the

offense level otherwise applicable, the offense level from the table in this

subsection shall apply”). Even though Amendment 706 would reduce Potts’s base

offense level under § 2D1.1 from 28 to 26, his guideline sentencing range would

remain the same under the career offender provision. Thus, because Amendment

706 had no effect on Potts’s sentencing range, § 3582(c)(2) did not authorize a

sentence reduction. See Moore, 541 F.3d at 1330. 

Potts argues that an exception to Moore applies here. He points to a

footnote in United States v. James, 548 F.3d 983, 985 n.2 (11th Cir. 2008) (per

curiam), in which we acknowledged that “Amendment 706 could apply to the

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sentence of an armed career criminal” where “§ 2D1.1(c) was applied at the

original sentencing for an armed career criminal because it produced the highest

offense level among the relevant calculations in § 4B1.4(b).” As Potts concedes,

he was not sentenced as an armed career criminal. Equally important, his base

offense level under § 2D1.1(c) was not applied at his original sentencing because

he had a greater offense level under the career offender provision. The exception

noted in James is therefore inapplicable.

For these reasons, we AFFIRM the district court’s denial of Potts’s motion

for sentence reduction. 

AFFIRMED.

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