                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                   FILED
                                                           U.S. COURT OF APPEALS
                                No. 08-16051                 ELEVENTH CIRCUIT
                            Non-Argument Calendar                APRIL 22, 2009
                          ________________________            THOMAS K. KAHN
                                                                    CLERK
                       D. C. Docket No. 02-60200-CR-UU

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus

VICTOR GARRY BAXTER,

                                                            Defendant-Appellant.

                          ________________________

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

                               (April 22, 2009)

Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.

PER CURIAM:

      Victor Garry Baxter appeals from the district court’s denial of his motion to

modify his sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706 to the

Sentencing Guidelines, which reduced the base offense levels applicable to crack
cocaine found in U.S.S.G. § 2D1.1. On appeal, Baxter, who was sentenced based

on his status as a career offender, argues that the district court erred in refusing to

reduce his sentence, on grounds that United States v. Moore, 541 F.3d 1323 (11th

Cir. 2008), cert. denied, McFadden v. United States, 129 S. Ct. 965 (2009), and

cert. denied, __ S. Ct. __ (U.S. Mar. 9, 2009) (No. 08-8554), was wrongly decided

and that the district court had discretion, under United States v. Booker, 543 U.S.

220 (2005), to consider the 18 U.S.C. § 3553(a) factors and reduce his sentence.

After careful review, we affirm.

      “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 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). Any reduction, however, must be “consistent with applicable

policy statements issued by the Sentencing Commission.”             Id.   A sentence

modification is not consistent with the Commission’s policy statements where an

amendment “does not have the effect of lowering the defendant’s applicable

guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).



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      Baxter’s arguments are foreclosed by precedent. In Moore, we held that

where a defendant’s base offense level is calculated under the career offender

provision in U.S.S.G. § 4B1.1 rather than the drug quantity table in § 2D1.1(c),

Amendment 706 does not operate to lower the defendant’s guideline range and,

therefore, the defendant is not eligible for a sentence modification under

§ 3582(c)(2). 541 F.3d at 1330. Because Moore has not been overruled by this

Court sitting en banc or the Supreme Court, the district court was bound to follow

its holding. United States v. Valladeres, 544 F.3d 1257, 1264-65 (11th Cir. 2008).

Moreover, we have held that Booker, standing alone, does not provide a district

court with jurisdiction to modify a defendant’s sentence under § 3582(c)(2).

United States v. Moreno, 421 F.3d 1217, 1220-21 (11th Cir. 2005). Thus, the

district court did not err in denying Baxter’s § 3582(c)(2) motion, and, accordingly,

we affirm.

      AFFIRMED.




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