FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEB 06, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-15039

Non-Argument Calendar

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D. C. Docket No. 05-00019-CR-WLS-6

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RODERICK CURRY,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Georgia

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(February 6, 2009)

Before DUBINA, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

Appellant Roderick Curry, a federal prisoner convicted of a crack cocaine
offense, appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for

reduction of sentence based on Amendment 706 to the Sentencing Guidelines,

which lowered the base offense levels applicable to crack cocaine offenses. The

district court indicated that Curry was not eligible for relief under § 3582(c)(2)

because he was not sentenced under U.S.S.G. § 2D1.1, but under a statutory

maximum sentence that was less than the minimum of his guideline range.

On appeal, Curry generally argues that the district court possessed the

authority to reduce his sentence. He asserts that the Supreme Court’s decision in

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), in

which the Court held that the Guidelines are advisory, provided the district court

with authority to reduce his sentence despite the operation of his statutory

mandatory maximum sentence. He further argues that the district court erred by

failing to provide sufficient reasoning for its decision to deny his § 3582(c)(2)

motion.

I.

We review for abuse of discretion a district court’s decision whether to

reduce a sentence, pursuant to § 3582(c)(2), based on a subsequent change in the

Sentencing Guidelines. United States v. Brown, 332 F.3d 1341, 1343 (11th Cir.

2003). In the § 3582(c)(2) context, “we review de novo the district court’s legal

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

United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002).

Although a district court generally cannot modify a term of imprisonment

once it has been imposed, an exception lies in § 3582(c)(2), where:

[I]n the case 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 pursuant to 28 U.S.C.

994(o), upon motion of the defendant or the Director of the Bureau of

Prisons, or on its own motion, the court may reduce the term of

imprisonment, after considering the factors set forth in [18 U.S.C. §

3553(a)] to the extent that they are applicable, if such a reduction is

consistent with applicable policy statements issued by the Sentencing

Commission.

18 U.S.C. § 3582(c)(2) (emphasis added). A reduction of a term of imprisonment is

not consistent with applicable policy statements issued by the Sentencing

Commission – – and is, therefore, not authorized under § 3582(c)(2) – – 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); United States v. Moore,

541 F.3d 1323, 1330 (11th Cir. 2008), cert. denied, ___, S. Ct. ___, (U.S. Jan. 12,

2009) (No. 08-7610). A defendant is not eligible for a sentence reduction where a

guideline 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)).

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Amendment 706 retroactively reduced the offense levels in crack cocaine

cases, calculated pursuant to § 2D1.1(c), by two levels. U.S.S.G. App. C, Amend.

706. Although the retroactive effect of Amendment 706 allows a defendant, whose

guideline imprisonment range was determined in accordance with the offense level

calculations under § 2D1.1, to seek a reduction in his sentence, a defendant whose

original sentence ultimately was based on something other than the offense level

calculation under § 2D1.1 is precluded from receiving a sentence reduction because

the amendment does not have the effect of lowering the applicable guideline range.

U.S.S.G. § 1B1.10(a)(2)(B); Moore, 541 F.3d at 1330. Pursuant to the guidelines,

“[w]here the statutorily authorized maximum sentence is less than the minimum of

the applicable guideline range, the statutorily authorized maximum sentence shall

be the guideline sentence.” U.S.S.G. § 5G1.1(a).

We have held that Booker does not constitute an independent jurisdictional

basis to reduce a defendant’s sentence under § 3582(c)(2) because Booker is a

Supreme Court decision, not a retroactively applicable guideline amendment.

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

We conclude from the record that the district court did not err in finding that

it lacked the authority to reduce Curry’s sentence under § 3582(c)(2). Because

Curry was subject to a statutory mandatory maximum sentence that was less than

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the minimum of his amended guideline range, Amendment 706 did not have the

effect of lowering Curry’s guideline range. Moreover, we conclude that Booker did

not provide the district court with an independent jurisdictional basis to reduce

Curry’s sentence. Accordingly, we affirm the district court’s denial of Curry’s §

3582(c)(2) motion.

II.

We review de novo the question of whether a district court complied with 18

U.S.C. § 3553(c). United States v. Bonilla, 463 F.3d 1176, 1181 (11th Cir. 2006).

Section 3553(c) of Title 18 of the U.S. Code provides, in relevant part, that “the . . .

court shall state in open court the reason for its imposition of the particular

sentence.” 18 U.S.C. § 3553(c); Bonilla, 463 F.3d at 1181.

Because the district court’s order included sufficient reasoning to provide for

meaningful appellate review, we discern no reason to remand to the district court

for a further articulation of its reasons.

For the aforementioned reasons, we affirm the district court’s order denying

Curry’s motion for reduction of sentence.

AFFIRMED.

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