                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            JUNE 2, 2009
                             No. 08-13363                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

               D. C. Docket No. 05-00165-CR-ORL-31-JGG

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

JAMES ROOSEVELT LEE,

                                                         Defendant-Appellant.


                       ________________________

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

                              (June 2, 2009)

Before BLACK, CARNES, and BARKETT, Circuit Judges.

PER CURIAM:
      James Roosevelt Lee, a federal prisoner convicted of a crack cocaine

offense, appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion to

modify his sentence. Lee contends that he is entitled to a sentence reduction based

on Amendment 706 to the sentencing guidelines, which lowered the base offense

levels applicable to certain crack cocaine offenses. The district court held that it

lacked the authority to resentence Lee based on Amendment 706 because Lee was

sentenced as a career offender. Lee argues that the was entitled to a reduction

because although he qualified as a career offender, the district court’s downward

variance of his sentence meant that he was not sentenced as one.

      “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

where the defendant’s sentence was based on a sentencing range that was later

reduced 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. A sentence reduction is not “consistent with

applicable policy statements issued by the Sentencing Commission”—and

therefore not authorized under § 3582(c)(2)—if the amendment does not lower the

defendant’s guideline range. U.S.S.G. § 1B1.10(a)(2)(B). A defendant sentenced



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under the career-offender provision of § 4B1.1 of the guidelines is not entitled to

§ 3582 relief because Amendments 706 and 713 do not lower the applicable

guideline range for career offenders. See United States v. Moore, 541 F.3d 1323,

1327 (11th Cir. 2008).

      Although the district court applied a downward variance in sentencing Lee

originally, it still considered him a career offender. The district court never stated

that it did not consider Lee a career offender or that the career offender designation

overrepresented his criminal history. Instead, after explicitly discussing the

18 U.S.C. § 3553(a) factors and Lee’s extensive criminal history, the district court

applied a downward variance to reduce the sentencing disparity between Lee and a

codefendant. Because Lee was sentenced as a career offender, he is not entitled to

a sentence reduction under Amendment 706.

      AFFIRMED.




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