                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                 FILED
                                                         U.S. COURT OF APPEALS
                                No. 08-16306               ELEVENTH CIRCUIT
                            Non-Argument Calendar              MAY 6, 2009
                          ________________________          THOMAS K. KAHN
                                                                 CLERK
                      D. C. Docket No. 98-00918-CR-PAS

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

EDWARD VENARD HIGHTOWER,
a.k.a. Edwin,
a.k.a. Cedric,
a.k.a. E.Z.

                                                           Defendant-Appellant.
                          ________________________

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

                                 (May 6, 2009)

Before BIRCH, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      Edward Venard Hightower, through counsel, appeals from the district

court’s denial of his 18 U.S.C. § 3582(c)(2) motion to modify his sentence, based
on Amendment 706 to the U.S. Sentencing Guidelines, which lowered the base

offense levels for crimes involving cocaine base (“crack cocaine”). On appeal,

Hightower argues that the district court erred in finding that it lacked authority

under § 3582(c)(2) to reduce his sentence due to the fact that he was sentenced as a

career offender, because 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 under United

States v. Booker, 543 U.S. 220 (2005), and Kimbrough v. United States, 128 S. Ct.

558 (2007). After thorough 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.        The Sentencing

Commission has noted that a defendant is ineligible for a sentence reduction where

an “amendment does not have the effect of lowering [his] applicable guideline



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range because of the operation of another guideline or statutory provision.”

U.S.S.G. § 1B1.10, comment. (n.1(A)).

      The district court did not err in denying Hightower’s § 3582(c)(2) motion

because he was sentenced as a career offender. See Moore, 541 F.3d at 1330

(holding that a district court lacks authority under § 3582(c)(2) to reduce a

defendant’s sentence when the defendant was sentenced under U.S.S.G. § 4B1.1 as

a career offender). Additionally, Hightower’s Booker and Kimbrough arguments

are foreclosed by precedent. See United States v. Melvin, 556 F.3d 1190, 1192-93

(11th Cir. 2009), petition for cert. filed, (U.S. Feb. 10, 2009) (No. 08-8664)

(holding that Booker and Kimbrough do not apply at resentencing proceedings

under § 3582(c)(2)). Accordingly, we affirm.

      AFFIRMED.




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