FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEBRUARY 26, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-13730

Non-Argument Calendar

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D. C. Docket No. 05-60310-CR-CMA

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

QUANTRELLE D. GREEN,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(February 26, 2010)

Before EDMONDSON, BIRCH and CARNES, Circuit Judges.

PER CURIAM:

Quantrelle Green appeals the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion for a sentence reduction pursuant to Amendment 706 to the

Sentencing Guidelines. Green was originally sentenced as a career offender under

U.S.S.G. § 4B1.1(b)(B) to a below-Guidelines sentence of 168 months’

imprisonment.

Green contends that Amendment 706 applies to this case because the district

court, by originally sentencing him below the guidelines range, “implied that the

career offender provisions were not totally applicable,” and, thus, did not sentence

him as a career offender. Alternatively, Green contends that United States v.

Moore, 541 F.3d 1323 (11th Cir. 2008), cert. denied, McFadden v. United States,

129 S.Ct. 965, and cert. denied, 129 S.Ct. 1601 (2009), was wrongly decided.

Any sentence reduction under § 3582(c)(2) must be “consistent with

applicable policy statements issued by the Sentencing Commission.” 18 U.S.C.

§ 3582(c)(2). The commentary to U.S.S.G. § 1B1.10 provides that “a reduction in

the defendant’s term of imprisonment is not authorized under 18 U.S.C.

§ 3582(c)(2) and is not consistent with this policy statement if” a retroactive

amendment applies to the defendant but “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)). A

defendant sentenced pursuant to an offense level determined by U.S.S.G. § 4B1.1

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of the Guidelines is not entitled to § 3582(c)(2) relief because Amendments 706

and 713 do not lower the applicable guideline range for such career offenders.

Moore, 541 F.3d at 1327.

The fact that Green was sentenced below the guidelines range does not mean

that his offense level and guidelines range was not determined by the career

provision of § 4B1.1 of the guidelines. He was sentenced as a career offender

under § 4B1.1 and not under § 2D1.1, even though the court, after calculating his

guidelines range varied downward under § 3553(a) to recognize Green’s attempts

to find employment. In sentencing Green the district court rejected his contention

that he should not be sentenced as a career offender. As he conceded in the district

court, even with a 2-level reduction in his base offense level under Amendment

706, his guidelines range would have remained the same; it would have because of

the career offender provision. And because Green was sentenced as a career

offender, he was ineligible for § 3582(c)(2) relief under Amendment 706. See

Moore, 541 F.3d at 1327.

We are bound to follow our prior binding precedent in Moore unless and

until it is overruled by us en banc or by the Supreme Court. United States v.

Vegas-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008).

AFFIRMED.

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