FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 16, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-11807

Non-Argument Calendar

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D. C. Docket No. 04-80091-CR-DTKH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SIRCOREY WILDER,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(April 16, 2009)

Before DUBINA, CARNES and WILSON, Circuit Judges.

PER CURIAM:

Appellant Sircorey L. Wilder, through counsel, appeals the district court’s
denial of his pro se motion for a reduced sentence, filed pursuant to 18 U.S.C.

§ 3582(c)(2). Wilder’s § 3582(c)(2) motion was based on Amendment 706 to the

United States Sentencing Guidelines, which reduced base offense levels applicable

to crack cocaine. On appeal, Wilder argues that the district court erred in denying

his § 3582(c)(2) motion based on his status as a career offender because he

received a variance under 18 U.S.C. § 3553(a), and was not sentenced “within the

career offender sentencing range.” He also submits that the district court erred by

not considering the reasonableness of his sentence and the racial disparity created

by the crack-to-powder-cocaine ratio.

In a § 3582(c)(2) proceeding, “we review de novo the district court’s legal

conclusions regarding the scope of its authority under the Sentencing Guidelines.”

United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002). “We review de novo

questions of statutory interpretation.” United States v. Maupin, 520 F.3d 1304,

1306 (11th Cir. 2008). A district court may modify a term of imprisonment in the

case of a defendant who was 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 United States v. Moore, 541 F.3d 1323,

1327–28 (11th Cir. 2008), cert. denied, McFadden v. United States, 129 S. Ct. 965

(2009), and cert. denied, 2009 WL 301854 (U.S. Mar. 9, 2009) (No. 08-8554), we

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held that, if the defendant was sentenced as a career offender under § 4B1.1 and the

range was not affected by U.S.S.G. § 2D1.1, then the sentence is not “based on a

sentencing range that has subsequently been lowered.” We noted that the base

offense levels under § 2D1.1 played no role in the calculation of the career

offender range for the defendant. Id. at 1327. Thus, even though Amendment 706

was retroactive, the district court was not authorized to reduce the sentence. Id.

at 1330. We held that this result was the same when a defendant received a

downward departure for his substantial assistance under U.S.S.G. § 5K1.1 and 18

U.S.C. § 3553(a), stating that there was “no basis for concluding that the reduction

of [the defendant’s] base offense level lowered the sentencing range relied upon by

the district court in determining his sentence.” Id.

Just as in Moore, Wilder’s sentencing range was determined by his career

offender status under U.S.S.G. § 4B1.1, and his crack cocaine base offense level

played no role in his ultimate sentence. Thus, Wilder was not sentenced under the

otherwise applicable base offense level in U.S.S.G. § 2D1.1, and he is ineligible

for relief under Amendment 706. See Moore, 541 F.3d at 1327, 1330; U.S.S.G.

§ 1B1.10, comment. (n.1(A)) (prohibiting reduction where “amendment does not

have the effect of lowering the defendant’s applicable guideline range because of

the operation of another guideline”). This outcome is not changed by the fact that

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Wilder received a variance under 18 U.S.C. § 3553(a) because there is no

indication that the court based his sentence on the guideline range that would have

applied absent the career offender designation. See Moore, 541 F.3d at 1330.

Moreover, the district court did not have authority to reduce Wilder’s sentence

under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621

(2005), based on its reasonableness or the crack-to-powder-cocaine ratio. See

United States v. Jones, 548 F.3d 1366, 1369 (11th Cir. 2008) (holding that Booker

itself does not render a defendant eligible for a sentence reduction under

§ 3582(c)(2), cert. denied, ___U.S. ___, 2009 WL 469071 (U.S. Mar. 23, 2009)

(No. 08-8865)). Accordingly, we affirm the district court’s order denying Wilder’s

motion for a reduced sentence.

AFFIRMED.

 

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