                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 08-15338                ELEVENTH CIRCUIT
                                                        SEPTEMBER 30, 2009
                        Non-Argument Calendar
                                                         THOMAS K. KAHN
                      ________________________
                                                              CLERK

                D. C. Docket No. 05-00153-ORL-18DAB


UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

BORIS MENNARD EDWARDS,

                                                        Defendant-Appellant.


                      ________________________

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

                          (September 30, 2009)


Before EDMONDSON, CARNES and FAY, Circuit Judges.
PER CURIAM:

       Boris Mennard Edwards, a federal prisoner convicted of a crack cocaine

offense, appeals the district court’s determination that he was ineligible for a

sentence reduction under 18 U.S.C. § 3582(c)(2) and Amendment 706 to the

Sentencing Guidelines because he had been sentenced as a career offender.1 No

reversible error has been shown; we affirm.2

       During Edwards’s original sentencing proceedings, a probation officer

concluded that Edwards qualified as a career offender but that his total offense

level -- 31 -- was the same under either the drug quantity guideline, U.S.S.G. §

2D1.1(c), or the career offender guideline, U.S.S.G. § 4B1.1. The district court

granted the government’s U.S.S.G. § 5K1.1 motion based on Edwards’s substantial

assistance and sentenced Edwards to 120 months’ imprisonment, approximately

half the high end of the applicable guidelines range of 188 to 235 months.

       When a sentencing guideline is amended and given retroactive effect, the

district court may reduce an already incarcerated defendant’s term of imprisonment




       1
        Edwards did not file a formal section 3582(c)(2) motion. Instead, on the promulgation
of Amendment 706, the district court sua sponte appointed counsel for Edwards and ordered
responses about his potential eligibility for a sentence reduction under section 3582(c)(2).
       2
         We review de novo the district court’s legal conclusions about the scope of its authority
in a section 3582(c)(2) proceeding. United States v. James, 548 F.3d 983, 984 (11th Cir. 2008).

                                                 2
under the amendment “if such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2); see

also U.S.S.G. § 1B1.10(a)(1). A reduction of a term of imprisonment is not

“consistent with applicable policy statements issued by the Sentencing

Commission” -- and is, therefore, unauthorized under section 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). Amendment 706 --

which became retroactive on 3 March 2008, U.S.S.G. App. C, Amend. 713 (Supp.

1 May 2008) -- reduced by two the base offense levels in crack cocaine sentences

calculated pursuant to the drug quantity table, U.S.S.G. § 2D1.1(c).

      The career offender guideline provides that “if the offense level for a career

offender . . . is greater than the offense level otherwise applicable, the [career

offender] offense level . . . shall apply.” U.S.S.G. § 4B1.1(b). In United States v.

Moore, 541 F.3d 1323, 1327-28 (11th Cir. 2008), cert. denied, McFadden v.

United States, 129 S.Ct. 965 (2009), and cert. denied, 129 S.Ct. 1601 (2009), we

concluded that defendants sentenced as career offenders were ineligible for

sentence reductions under Amendment 706 because defendants’ guidelines ranges

were not based on the drug quantity offense levels that had been lowered by

Amendment 706.



                                            3
       Edwards argues that he was not sentenced as a career offender because his

total offense level was the same under either the drug quantity or career offender

guideline and, thus, Moore does not preclude him from receiving a sentence

reduction. Moore did not address explicitly the applicability of Amendment 706 to

a defendant whose total offense level was the same under the drug quantity and

career offender guidelines. But we conclude that Edwards’s career offender

designation ultimately drove the calculation of his guidelines range; and the district

court correctly denied section 3582 relief.

       In this case, the district court made a guidelines determination that Edwards

was a career offender.3 That his offense level under section 2D1.1(c) also was 31

(because application of section 4B1.1(b) did not result in a higher offense level)

did not change his career offender status. Thus, in determining whether

Amendment 706 reduced Edwards’s guidelines range, the district court was

required to consider not only whether the amendment reduced the drug quantity

base offense level, but whether section 4B1.1(b) produced a higher offense level

than his amended drug quantity offense level. See U.S.S.G. § 1B1.10(b)(1) (the

court “shall determine the amended guideline range that would have been

applicable to the defendant if the amendment(s) . . . had been in effect at the time


       3
        Edwards did not challenge his career offender designation in his original sentencing
proceedings.

                                                4
the defendant was sentenced”).

       Had Amendment 706 been in effect at Edwards’s original sentencing, his

drug quantity offense level would have been 29 instead of 31. But his career

offender offense level would have remained at 31. Therefore, Amendment 706 did

not have the effect of reducing Edwards’s guideline range; and the district court

concluded correctly that Edwards was ineligible for a sentence reduction under

section 3582(c)(2).4

       AFFIRMED.




       4
         To the extent that Edwards challenges the correctness of Moore, neither this Court
sitting en banc nor the Supreme Court has overruled it. See United States v. Vega-Castillo, 540
F.3d 1235, 1236 (11th Cir. 2008), cert. denied (U.S. June 22, 2009) (No. 08-8655) (explaining
that we are bound to follow our prior precedent “unless and until it is overruled by this court en
banc or by the Supreme Court”).

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