                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                           U.S. COURT OF APPEALS
                               No. 09-10725                  ELEVENTH CIRCUIT
                                                                 JULY 15, 2009
                           Non-Argument Calendar
                                                              THOMAS K. KAHN
                         ________________________
                                                                   CLERK

                     D. C. Docket No. 02-80051-CR-DTKH

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

HAROLD JOHNSON,
a.k.a. Baldhead,

                                                             Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                 (July 15, 2009)

Before BARKETT, WILSON and FAY, Circuit Judges.

PER CURIAM:

     Harold Johnson appeals the district court’s denial of his pro se 18 U.S.C.
§ 3582(c)(2) motion for reduction of sentence based on Amendment 706. Johnson

is a federal prisoner previously convicted of conspiracy to possess with intent to

distribute over 50 grams of cocaine base, in violation of 21 U.S.C. § 846. The

district court denied Johnson’s motion because Johnson was sentenced as a career

offender under U.S.S.G. § 4B1.1, and therefore Amendment 706 did not change his

Guidelines range.

      On appeal, Johnson concedes that he was sentenced as a career offender and

that, per 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),

he was not eligible for § 3582 relief because his final sentencing range was based

on U.S.S.G.§ 4B1.1, not § 2D1.1. However, Johnson argues that the district court

erred as a matter of law in order to seek further review on the issue.

      “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). A district court may reduce 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). Any reduction, however, must be “consistent

with applicable policy statements issued by the Sentencing Commission.” Id. The



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applicable policy statements, found in § 1B1.10, state that a reduction of a term of

imprisonment 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 district court did not err in refusing to reduce Johnson’s sentence

because Johnson was sentenced as a career offender pursuant to § 4B1.1. Moore,

541 F.3d at 1327 (holding that a defendant sentenced as a career offender pursuant

to § 4B1.1 is not entitled to § 3582 relief because Amendments 706 and 713 did

not lower the applicable guideline range for career offenders).

      AFFIRMED.




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