FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 23, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-16301

Non-Argument Calendar

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D. C. Docket No. 00-14086-CR-KMM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTHONY J. SANDERS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(September 23, 2009)

Before BIRCH, HULL and WILSON, Circuit Judges.

PER CURIAM:
Anthony J. Sanders, a federal prisoner convicted of a crack cocaine offense

and sentenced as a career offender, appeals the district court’s denial of his pro se

18 U.S.C. § 3582(c)(2) motion for reduction of sentence. Sanders based his

motion on Amendment 706 to U.S.S.G. § 2D1.1, which lowered the base offense

levels applicable to crack cocaine offenses. Because Sanders was sentenced as a

career offender under U.S.S.G. § 4B1.1, Amendment 706 did not have the effect of

lowering his guideline range, as required for relief under 18 U.S.C. § 3582(c)(2).

As a result, we affirm the district court’s denial of Sanders’s motion.

I. BACKGROUND

In 2001, Sanders pled guilty to one count of possession with intent to

distribute more than five grams of cocaine base, in violation of 21 U.S.C. §

841(a)(1). Sanders’s base offense level was 30 pursuant to U.S.S.G. § 2D1.1.

However, Sanders was also classified as a career offender under U.S.S.G. § 4B1.1

because he was at least 18 years old at the time of the instant offense, the instant

offense was a felony drug offense, and Sanders had at least two prior felony

convictions for controlled substance offenses. Since the statutory maximum term

of imprisonment for a violation of 21 U.S.C. § 841(a)(1) is 40 years imprisonment,

the career offender guideline requires a base offense level of 34. See U.S.S.G. §

4B1.1(b). Sanders then received a downward departure of three levels for timely

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acceptance of responsibility, resulting in a total offense level of 31. Sanders’s

sentencing range was 188 to 235 months of imprisonment, and the district court

sentenced Sanders to 188 months.

II. STANDARDS OF REVIEW

“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).

III. DISCUSSION

A district court may modify a sentence “in the case of a defendant who has

been sentenced . . . based on a sentencing range that has subsequently been

lowered by the Sentencing Commission . . . .” § 3582(c)(2) (emphasis added). In

such a case, the court may reduce the defendant’s sentence after considering

applicable § 3553(a) factors, “if such a reduction is consistent with applicable

policy statements issued by the Sentencing Commission.” Id. A reduction is not

consistent with applicable policy statements and is not authorized if the retroactive

amendment does not have the “effect of lowering the defendant’s applicable

guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). The retroactive amendment at issue

here is Amendment 706, which reduces the base offense levels for crack cocaine

offenses sentenced under U.S.S.G. § 2D1.1.

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Sanders concedes that this Court previously decided the issue on appeal 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

(Mar. 9, 2009). Moore involved several defendants convicted of crack cocaine

offenses who were sentenced under the career offender guideline § 4B1.1. In

Moore, we held that a defendant whose original sentence was based ultimately on

something other than the offense level calculation under § 2D1.1, such as the

career offender guideline section of § 4B1.1, cannot receive a sentence reduction

because Amendment 706 does not have the “effect” of lowering the applicable

guideline range. Moore, 541 U.S. at 1327–28. That is, a defendant cannot obtain

relief under § 3582(c)(2) if his sentence was based on the career offender guideline

because Amendment 706 would not have reduced his sentence. Id. at 1330.

Sanders’s conviction was based ultimately on the career offender guideline,

rather than the offense level calculation under § 2D1.1. A career offender’s base

offense level is determined with regard to the statutory maximum sentence for the

offense of conviction. U.S.S.G. § 4B1.1. Therefore, Sanders offense level was

based on § 4B1.1, which calculated a base offense level of 34 after taking into

regard the statutory maximum sentence for Sanders’s offense of conviction.

Consequently, Amendment 706 to § 2D1.1 does not have the effect of lowering

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Sanders’s sentencing range, and the district court could not reduce his sentence.

Sanders argues that Moore was decided wrongly. He asserts that regardless

of whether the career offender guideline range was affected by Amendment 706,

the district court must still consider § 3553(a), which requires that certain factors

be taken into account in imposing a sentence on a defendant. However, §

3582(c)(2) does not give a district court unfettered authority to reduce a

defendant’s sentence. Instead, the court must determine the amended guideline

range that would have been applicable to the defendant if Amendment 706 had

been in effect at the time Sanders was sentenced. U.S.S.G. § 1B1.10 (b)(1). A

court shall only substitute the amendments that have been listed for retroactive

application and “shall leave all other guideline application decisions unaffected.”

Id. If the application of a retroactive amendment did not have the effect of

lowering the defendant’s sentencing range, then the district court has no

jurisdiction to reduce a defendant’s sentence. Therefore, the district court could

not analyze the factors under § 3553(a) unless it first determined that Amendment

706 had the effect of lowering the defendant’s sentencing range. See § 3582(c)(2).

In Moore, we explicitly held that Amendment 706 did not have the effect of

lowering a defendant’s applicable guideline range if the defendant was sentenced

as a career offender under § 4B1.1. Moore, 541 F.3d at 1325. Moore remains

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valid authority for a defendant sentenced under the career offender guideline. We

may “depart from a prior panel decision based upon an intervening Supreme Court

decision . . . if that decision actually overruled or conflicted with it” or if, sitting en

banc, we overrule the decision. United States v. Marte, 356 F.3d 1336, 1344 (11th

Cir. 2004) (quotation omitted).

Sanders did not qualify for the Amendment 706 reduction because he was a

career offender, and the district court did not need to consider the § 3553(a) factors

because it lacked the authority to grant any reduction. We may not depart from

Moore because it has not been overruled by the Supreme Court or by this Court

sitting en banc.

AFFIRMED.

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