                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                               No. 08-14363                     MAY 6, 2009
                           Non-Argument Calendar              THOMAS K. KAHN
                                                                  CLERK
                         ________________________

                 D. C. Docket No. 04-00077-CR-FTM-29SPC

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

MARIA ESTER ORTIZ,

                                                            Defendant-Appellant.


                         ________________________

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

                                 (May 6, 2009)

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

     Maria Ester Ortiz appeals the denial of her motion for a sentence reduction,
under 18 U.S.C. § 3582(c)(2). After a thorough review of the record, we affirm.

       Ortiz pleaded guilty to conspiracy to possess with intent to distribute

cocaine, in violation of 21 U.S.C. § 841.1 In determining the appropriate

guidelines range, the district court concluded that Ortiz qualified as a career

offender under U.S.S.G. § 4B1.1 and calculated her adjusted offense level under

the career-offender guideline rather than the guidelines applicable to drug offenses.

The court then granted a downward departure in Ortiz’s criminal history category,

finding that the category over-represented Ortiz’s criminal history. Based on its

rulings at sentencing, the court determined the guidelines range was 168 to 210

months’ imprisonment and imposed a sentence of 168 months’ imprisonment.

       Ortiz subsequently filed a motion for reduction of sentence, § 3582(c),

relying on Sentencing Guidelines Amendment 706, which permits courts to reduce

sentences calculated pursuant to crack cocaine guidelines. The district court

denied Ortiz’s motion, finding that she was ineligible for a reduction because she

was sentenced as a career offender under U.S.S.G. § 4B1.1 and thus her guidelines

range had not been lowered by the amendment. This appeal followed.

       Ortiz argues that the district court erred in finding that she was ineligible for

a reduction where she was granted a downward departure because her criminal


       1
         The court noted that the offense involved both crack and powder cocaine. The
indictment, however, did not charge Ortiz with a crack cocaine offense.

                                              2
history category over-represented her criminal history. She also argues, for the

first time on appeal, that it is unclear whether the district court originally sentenced

her as a career offender or under the guidelines applicable to drug offenses.

       “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). However, objections or arguments not raised in the

district court are reviewed for plain error. United States v. Evans, 478 F.3d 1332,

1338 (11th Cir. 2007). Under plain-error review, we may reverse only if there is

(1) error, (2) that is plain, and (3) that affects the defendant’s substantial rights. Id.

Moreover, even if the first three conditions are met, we may only exercise our

discretion to correct the error if the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings. Id.

       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 subsequently has been lowered by the Sentencing Commission.

18 U.S.C. § 3582(c)(2). In considering a § 3582(c)(2) motion, the district court

must engage in a two-part analysis. United States v. Bravo, 203 F.3d 778, 780

(11th Cir. 2000). First, the court recalculates the sentence under the amended

guidelines, changing only that which was changed by the amendment. Id. The



                                             3
court then makes a discretionary decision as to whether to impose the amended

sentence or retain the original sentence. Id. at 781.

      Upon review, the record reflects that the district court sentenced Ortiz under

the career offender guidelines rather than the guidelines applicable to drug

offenses. Moreover, because Ortiz was sentenced based on the career-offender

offense level, she was ineligible for a sentence reduction under Amendment 706.

See United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008), cert. denied,

McFadden v. United States, 129 S.Ct. 965 (2009), and cert. denied, (U.S. Mar. 9,

2009 (No. 08-8554)) (holding that the district court does not have the authority to

reduce the sentence of a defendant who was sentenced as a career offender under

U.S.S.G. § 4B1.1).

      AFFIRMED.




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