                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 08-14244                ELEVENTH CIRCUIT
                                                           JANUARY 9, 2009
                        Non-Argument Calendar
                                                         THOMAS K. KAHN
                      ________________________
                                                              CLERK

                  D. C. Docket No. 01-00038-CR-3-RV

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                 versus

ROBERT R. BALL,

                                                       Defendant-Appellant.


                      ________________________

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

                           (January 9, 2009)

Before ANDERSON, CARNES and WILSON, Circuit Judges.

PER CURIAM:
      Robert R. Ball, a federal prisoner convicted of crack-cocaine offenses,

appeals the district court’s denial of his pro se 18 U.S.C. § 3582(c)(2) motion for a

reduced sentence. On appeal, Ball argues that the district court denied his

§ 3582(c)(2) motion under the erroneous belief that it had no authority to depart

from the restrictions set forth by § 3582(c)(2) and the Sentencing Guidelines. He

maintains that the limitations of U.S.S.G. § 1B1.10 conflict with the holding of

United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005),

and that the district court’s adherence to § 1B1.10 resulted in an unconstitutional

mandatory application of the Guidelines. Further, he notes that the district court

departed from his original sentence pursuant to Fed.R.Crim.P. 35.

      We review “a district court’s decision whether to reduce a sentence pursuant

to [§ 3582(c)(2)], based on a subsequent change in the sentencing guidelines, for

abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343 (11th

Cir. 2003). However, in the § 3582(c)(2) context, we review “de novo the district

court’s legal conclusions regarding the scope of its authority under the Sentencing

Guidelines.” United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002).

      A district court may not modify a term of imprisonment once it has been

imposed except where expressly permitted by statute or by Fed.R.Crim.P. 35. 18




                                          2
U.S.C. § 3582(c)(1)(B). One statutory exception to this general rule includes

relief under § 3582(c)(2), which provides:

      [I]n the case of a defendant who has been sentenced to a term of
      imprisonment based on a sentencing range that has subsequently been
      lowered by the Sentencing Commission pursuant to 28 U.S.C.
      [§] 994(o), upon motion of the defendant or the Director of the
      Bureau of Prisons, or on its own motion, the court may reduce the
      term of imprisonment, after considering the factors set forth in [18
      U.S.C. § 3553(a)] to the extent that they are applicable, if such a
      reduction is consistent with applicable policy statements issued by the
      Sentencing Commission.

18 U.S.C. § 3582(c)(2). The Sentencing Commission’s recently revised policy

statement on retroactive amendments to the Guidelines provides:

      In a case in which 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, the court may reduce the defendant’s
      term of imprisonment as provided by [§ 3582(c)(2)]. As required by
      [§ 3582(c)(2)], any such reduction in the defendant’s term of
      imprisonment shall be consistent with this policy statement.

U.S.S.G. § 1B1.10(a)(1) (made effective on March 3, 2008, by Amendment 712).

The policy statement emphasizes that “[a] reduction in the defendant’s term of

imprisonment is not consistent with this policy statement and therefore is not

authorized under [§ 3582(c)(2)] if . . . [a]n amendment listed in subsection (c) does

not have the effect of lowering the defendant’s applicable guideline range.”

U.S.S.G. § 1B1.10(a)(2)(B). In this regard, the commentary to § 1B1.10 explains

                                          3
that a reduction under § 3582(c)(2) is not authorized if the “amendment . . . is

applicable to the defendant but the amendment does not have the effect of

lowering the defendant’s applicable guideline range because of the operation of

another guideline or statutory provision (e.g., a statutory mandatory minimum term

of imprisonment).” U.S.S.G. § 1B1.10, comment. (n.1(A)).

      On November 1, 2007, the Sentencing Commission promulgated

Amendment 706, which amended the Drug Quantity Table in U.S.S.G. § 2D1.1(c).

U.S.S.G. App. C, Amend. 706 (2007). The effect of Amendment 706 is to provide

a two-level reduction in base offense levels for certain crack-cocaine offenses.

See id. The Commission made this amendment retroactively applicable, effective

as of March 3, 2008. See U.S.S.G., App. C, Amend. 713 (Supp. May 1, 2008)

(listing Amendment 706 under U.S.S.G. § 1B1.10(c) as a retroactively applicable

amendment).

      A district court lacks authority to grant a sentence reduction under § 3582(c)(2)

“[w]here a retroactively applicable guideline amendment reduces a defendant’s base

offense level, but does not alter the sentencing range upon which his or her sentence

was based.” United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008).

Although Amendment 706 would reduce a defendant’s base offense level, it would

not affect his guideline range where he was sentenced as a career offender under

                                          4
§ 4B1.1. Id.       This was also true when the district court had granted a § 5K1.1

downward departure motion that resulted in a lower sentence than the career offender

minimum sentence but did not base the new sentence on the guidelines range that

would have been appropriate had Moore not been a career offender. Id.

      The district court did not err in finding that Amendment 706 had no effect

on Ball’s offense level because he was sentenced as a career offender under

U.S.S.G. § 4B1.1 and the court did not base his sentence adjusted by the

downward departure on the guidelines range that would have been appropriate had

he not been a career offender. Additionally, we have held “ Booker is a Supreme

Court decision, not a retroactively applicable guideline amendment by the

Sentencing Commission. Therefore, Booker is inapplicable to § 3582(c)(2)

motions.” United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir.2005).

Furthermore, the plain language of § 3582(c)(2) clearly authorizes a lower court to

reduce a sentence only where a defendant's original sentencing range has been

reduced by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Accordingly, we

affirm.

      AFFIRMED.1




      1
          Ball’s request for oral argument is denied.

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