                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT

                    __________________________________       FILED
                                                    U.S. COURT OF APPEALS
                               No. 08-10013           ELEVENTH CIRCUIT
                                                         MARCH 4, 2009
                           Non-Argument Calendar
                                                       THOMAS K. KAHN
                    __________________________________      CLERK

                      D. C. Docket No. 92-00039-CR-UUB

UNITED STATES OF AMERICA
                                                         Plaintiff-Appellee,

                                      versus

DIOGENES PALACIOS,

                                                         Defendant-Appellant.

                    _________________________________

             On Appeal from the United States District Court for the
                          Southern District of Florida
                  __________________________________

                                 (March 4, 2009)

Before TJOFLAT, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

      In United States v. Palacios, No. 92-5180 (11th Cir. June 4, 2001) (not

published), we affirmed appellant’s convictions and sentences for conspiracy to
possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and for

possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1).

On June 21, 2007, appellant moved the district court to reduce his sentence

pursuant to 18 U.S.C. § 3582(c)(2) on the ground that a retroactive amendment to

the Sentencing Guidelines, Amendment 591 to U.S.S.G. §§ 2D1.1 and 2D1.2,

required the district court to sentence him only on the basis of the quantity of

cocaine charged in the indictment and established by the jury at his trial;1 the

amendment therefore lowered his sentencing range. The district court denied

appellant’s motion, concluding that United States v. Moreno, 421 F.3d 1217 (11th

Cir. 2005), precluded the relief appellant was seeking and, moreover, that

Amendment 591 did not appear to change his sentences because his offense of

conviction was not one of the enumerated offenses affected by the amendment.

Appellant appeals, challenging the court’s ruling.

           Appellant argues that United States v. Carr, 189 Fed. Appx. 907 (11th Cir.

2007), an unpublished decision, holds that Amendment 591 applies to all

Guidelines sections under Chapter 2, and that Carr effectively condemns as error

the district court’s holding that Amendment 591 applies only to the selection of the



       1
        Appellant was not charged in the indictment with the amount of drugs the court held
him accountable for at sentencing.

                                               2
offense guideline but not the base offense level within the guideline. Moreover,

the court’s holding conflicts with Blakely v. Washington, 542 U.S. 296, 124 S.Ct.

2531 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000),

because the holding, if upheld, would allow the sentencing judge, rather than a jury

(or the defendant by admission), to determine the quantity of drugs for which the

defendant should be held accountable.

      Under § 3582, a district court may not modify a sentence of imprisonment

once the sentence has been imposed except where expressly authorized by law. 18

U.S.C. § 3582(c)(1)(B). Section 1B1.10 of the Sentencing Guidelines states,

“[w]here a defendant is serving a term of imprisonment, and the guideline range

applicable to that defendant has subsequently been lowered as a result of an

amendment to the Guidelines Manual listed in subsection (c) below, a reduction in

the defendant’s term of imprisonment is authorized under 18 U.S.C. § 3582(c)(2).”

U.S.S.G. § 1B1.10(a).

      In Moreno, we held, contrary to the position appellant has adopted, that

Amendment 591 applies only “to the selection of the relevant offense guideline, not

the selection of a base offense level within the applicable offense guideline.” 421

F.3d at 1220. Moreno is the law of this circuit unless overruled by the court en

banc or rendered inoperative by a decision of the Supreme Court.

                                         3
AFFIRMED.




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