FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

October 23, 2008

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-11492

Non-Argument Calendar

________________________

D. C. Docket No. 98-08105-DTKH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BYRON KEITH THOMAS,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(October 23, 2008)

Before TJOFLAT, BLACK and CARNES, Circuit Judges.

PER CURIAM:

Byron Keith Thomas was convicted on a guilty plea of two counts of
possession with intent to distribute crack cocaine in violation of 21 U.S.C. §

841(a)(1). He went to trial on a charge of being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1), and was found guilty of that charge. Thomas

was sentenced on July 2, 1999. At sentencing the two drug count convictions and

the felon in possession conviction were grouped together under U.S.S.G.

§ 3D1.2(c) because they involved substantially the same harm. Thomas’ base

offense level as calculated under U.S.S.G. § 2D1.1 was 14 based on the amount of

crack cocaine, which was enhanced to 16 because of the specific offense

characteristic of his firearm possession. Thomas’ base offense level of 16, along

with his criminal history category of VI, indicated a guidelines range of 46 to 57

months.

However, as a result of the application of the armed career criminal

provisions of U.S.S.G. § 4B1.4(b)(3)(A), Thomas’ offense level was increased to

34 because he had used or possessed a firearm in connection with a controlled

substance offense. Therefore, Thomas’ sentence was based on the guideline range

applicable to armed career criminals—262 to 327 months—and he was sentenced

to 295 months on the firearm possession count. On the two crack cocaine offenses,

the district court sentenced Thomas to the statutory maximum of 240 months to run

concurrently with the sentence on the firearm count.

2
Thomas appeals the district court’s judgment denying his 18 U.S.C.

§ 3582(c)(2) motion for reduction of sentence. That motion was based on the

retroactively applicable amendment to the crack cocaine guidelines. As we

recently explained: “. . . Amendment 706 to the Sentencing Guidelines . . . together

with Amendment 713, retroactively reduced the base offense levels applicable to

crack cocaine offenses.” United States v. Moore, 541 F.3d 1323, 1325 (11th Cir.

2008); see also U.S.S.G. App. C, Amend. 706 (2007); Amend. 713 (Supp. May 1,

2008).

We have subject matter jurisdiction over this appeal because the district

court had subject matter jurisdiction to decide the motion for reduction of sentence.

See Moore, 541 F.3d at 1326. Although Thomas filed his motion for re-sentencing

before Amendment 706 became retroactively applicable on March 3, 2008, the

district court did not rule on it until after the amendment became effective. Moore

holds that under these circumstances there is jurisdiction. Id.

The defendants in Moore, just like Thomas, had their base offense levels

calculated under U.S.S.G. § 2D.1.1, which determines the applicable level based

on the quantity of drugs involved in the offense. Id. at 1325. The Moore

defendants, also like Thomas, had their offense levels adjusted to either 37 or 34.

Id. The district court adjusted the Moore defendants’ offense levels because they

3
were classified as career offenders under U.S.S.G. § 4B1.1(a). Id. This Court held

that because the defendants’ sentences were based on the guideline ranges

applicable to career offenders under § 4B1.1, their base levels under § 2D1.1

played no role in the calculation of their guideline ranges for sentencing. Id. at

1327. Therefore, Amendment 706’s effect on their base offense levels made no

difference in the sentencing ranges upon which their sentences were based. Id.

There is only one difference between this case and Moore: Thomas was

sentenced under the guideline for armed career criminals, U.S.S.G. § 4B1.4, while

the Moore defendants were sentenced under U.S.S.G. § 4B1.1. However, that

difference in the applicable recidivist guideline does not call for a difference in

result. The reasoning in Moore applies here as well. We explained in Moore that,

“[w]here a retroactively applicable guideline amendment reduces a defendant’s

base offense level, but does not alter the sentencing range upon which his or her

sentence was based, § 3582(c)(2) does not authorize a reduction in sentence.” Id.

at 1330.

The reduction of base offense levels in relation to crack cocaine quantities

under U.S.S.G. § 2D1.1(c) has no effect on Thomas’ sentencing range. See id. As

was the case in Moore, Thomas would have been subject to exactly the same

guidelines range if the provisions of Amendment 706 had been in effect at the time

4
he was originally sentenced because his sentence was based on the guideline range

applicable to armed career criminals under U.S.S.G. § 4B1.4.

AFFIRMED.

5