                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                               No. 08-14159                 ELEVENTH CIRCUIT
                                                                JULY 8, 2009
                           Non-Argument Calendar
                                                             THOMAS K. KAHN
                         ________________________
                                                                  CLERK

                       D. C. Docket No. 99-00017-CR-6

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

JOHNNY RAY KIRKLAND,

                                                            Defendant-Appellant.


                         ________________________

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

                                 (July 8, 2009)

Before HULL, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

     Johnny Ray Kirkland, proceeding pro se, appeals the district court’s denial
of his motion for a reduced sentence, pursuant to 18 U.S.C. § 3582(c)(2) and

Amendment 706. Kirkland’s § 3582(c)(2) motion was based on Amendment 706

to the Sentencing Guidelines, which reduced base offense levels applicable to

crack cocaine. On appeal, Kirkland argues that the district court erred in denying

his motion for a sentence reduction, despite his status as a career offender.

Kirkland asserts that he was eligible because, even though the court increased his

offense level under U.S.S.G. § 4B1.1, the court derived his base offense level from

U.S.S.G. § 2D1.1. Additionally, he contends the court should have reduced his

sentence based on his post-sentencing rehabilitative efforts and because the

guidelines are advisory under United States v. Booker, 543 U.S. 220, 125 S.Ct.

738, 160 L.Ed.2d 621 (2005). He also argues that the district court had discretion

to reduce his sentence because he received a departure pursuant to U.S.S.G.

§ 5K1.1 for substantial assistance.

      In a § 3582(c)(2) proceeding, “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). “We review de

novo questions of statutory interpretation.” United States v. Maupin, 520 F.3d

1304, 1306 (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



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sentencing range that has subsequently been lowered by the Sentencing

Commission. 18 U.S.C. § 3582(c)(2). In United States v. Moore, 541 F.3d 1323

(11th Cir. 2008), cert. denied, (U.S. Mar. 9, 2009) (No. 08-8554), we held that if

the defendant was sentenced as a career offender under § 4B1.1 and the range was

not affected by U.S.S.G. § 2D1.1, then the sentence is not “based on a sentencing

range that has subsequently been lowered.” 541 F.3d at 1327-28. We noted that

the base offense levels under § 2D1.1 played no role in the calculation of the career

offender range for the defendant. Id. at 1327. Thus, even though Amendment 706

was retroactive, the district court was not authorized to reduce the sentence. Id. at

1330. We held that this result was the same when a defendant received a

downward departure for his substantial assistance under U.S.S.G. § 5K1.1 and 18

U.S.C. § 3553(a), stating that there was “no basis for concluding that the reduction

of [the defendant’s] base offense level lowered the sentencing range relied upon by

the district court in determining his sentence.” Id.

      Just as in Moore, Kirkland’s sentencing range was determined by his career

offender status under U.S.S.G. § 4B1.1 and his crack cocaine base offense level

played no ultimate role in his sentence. Thus, Kirkland was not sentenced under

the otherwise applicable base offense level in U.S.S.G. § 2D1.1, and he is

ineligible for relief under Amendment 706. See Moore, 541 F.3d at 1327, 1330;



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U.S.S.G. § 1B1.10, comment. (n.1(A)) (prohibiting reduction where “amendment

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

because of the operation of another guideline”). This outcome is not changed by

the fact that Kirkland received a departure under U.S.S.G. § 5K1.1 for substantial

assistance because there is no indication that the court based his sentence on the

guideline range that would have applied absent the career offender designation.

See Moore, 541 F.3d at 1330. Further, Kirkland could not rely solely on Booker or

his rehabilitative efforts as an independent basis for relief under § 3582(c)(2). See

United States v. Melvin, 556 F.3d 1190, 1192-93 (11th Cir. 2009), cert. denied,

(U.S. May 18, 2009) (No. 08-8664) (holding that Booker does not render a

guideline range advisory in the context of a § 3582 proceeding, whether or not the

guideline range is reduced by a sentencing amendment); United States v. Moreno,

421 F.3d 1217, 1220-21 (11th Cir. 2005) (holding that Booker did not provide a

jurisdictional basis for § 3582 relief because it was not a sentencing amendment

and that § 3582 only provides a district court with the discretion to reduce a

sentence following the lowering of a sentencing range by the Sentencing

Commission). Accordingly, we affirm.

      AFFIRMED.




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