                    Case: 12-10662         Date Filed: 07/18/2012   Page: 1 of 5

                                                                       [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10662
                                        Non-Argument Calendar
                                      ________________________

                              D.C. Docket No. 0:04-cr-60026-KAM-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,

                                                 versus

JERMAINE GIBSON,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                            (July 18, 2012)

Before TJOFLAT, CARNES and WILSON, Circuit Judges.

PER CURIAM:

         On July 26, 2004, Jermaine Gibson pled guilty (pursuant to a plea
                Case: 12-10662       Date Filed: 07/18/2012      Page: 2 of 5

agreement) to conspiracy to possess with intent to distribute 50 grams or more of

crack cocaine, in violation of 21 U.S.C. § 846. At sentencing, the District Court,

based on the presentence investigation report prepared by the court’s probation

office,1 determined that U.S.S.G. § 2D1.1 provided a base offense level of 32 for

Gibson’s offense, since the offense involved at least 50 grams but less than 150

grams of crack.2 Gibson had at least two prior felony convictions for a crime of

violence or a controlled-substance offense, so the court designated him a career

offender under U.S.S.G. § 4B1.1 with a criminal history category of VI. The

statutory maximum penalty for the offense was life imprisonment; the court

consequently increased Gibson’s base offense level to 37. That offense level was

reduced by three levels to level 34 pursuant to U.S.S.G. § 3E1.1 to reflect

Gibson’s acceptance of responsibility. The offense level of 34 and criminal

history category of VI then yielded a sentence range of 262 to 327 months’

imprisonment.

      The Government moved the District Court for a downward departure from

that range pursuant to U.S.S.G. § 5K1.1 to give Gibson credit for the substantial

assistance he had provided the Government in several investigations. The court


      1
          The report was prepared in accordance with the 2003 Guideline Manual
      2
          The court held Gibson accountable for 85 grams of crack.

                                               2
              Case: 12-10662     Date Filed: 07/18/2012   Page: 3 of 5

granted the motion and sentenced Gibson to prison for a term of 156 months.

      In February 2008, Gibson moved the District Court to reduce his sentence

pursuant to 18 U.S.C. § 3582(c)(2), basing his motion on Amendment 706 to the

Sentencing Guildelines, which reduced by two levels most of the base offense

levels in the drug quantity table for offenses involving crack. The Government

opposed the motion on motion on the ground that Amendment 706 did not apply

because Gibson had been sentenced as a career offender and Amendment 706 did

not lower his offense level since that level was controlled by the career offender

guideline, § 4B1.1, not the offense guideline, § 2D1.1. The District Court agreed

and denied the motion. Gibson appealed, and this court affirmed. United States v.

Gibson, No. 08-12293 (January 7, 2009) (not published). United States v. Moore,

541 F.3d 1323 (11th Cir. 2008), controlled our decision. As in Moore, “Gibson’s

guideline range was determined by application of the career offender guideline

and the crack cocaine base offense level played no ultimate role in his sentence.”

      In December 2011, Gibson again moved the District Court for a sentence

reduction pursuant to § 3582(c)(2). He based his motion on the retroactive

application of Amendment 750 to the Guidelines, which took effect on November

1, 2011. The Amendment altered the drug quantity tables in U.S.S.G. § 2D1.1(c)

by increasing the quantity of crack required to trigger each base offense level in

                                          3
              Case: 12-10662     Date Filed: 07/18/2012   Page: 4 of 5

order to conform the levels to the statutory changes to the mandatory minimum

terms of imprisonment created by the Fair Sentencing Act of 2010, Pub. L. No.

111-220, 124 Stat. 23272. The District Court denied the motion, holding, as it did

in denying Gibson’s previous motion for sentence reduction, that Gibson was not

eligible for a sentence reduction because he was sentenced as a career offender.

Gibson now appeals the ruling.

      We are bound by this court’s decision in United States v. Moore “unless and

until it is overruled by this [C]ourt en banc or by the Supreme Court.” United

States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003). Where a retroactively

applicable guideline amendment reduces a defendant’s base offense level, but does

not alter the sentencing range upon which his sentence was based, the District

Court is not authorized to grant a sentence reduction pursuant to § 3582(c)(2).

Moore, 541 F.3d at 1330. This includes the situation in which a retroactive

amendment to § 2D1.1(c) would result in a lower base offense level, but the

defendant was sentenced as a career offender. See id. at 1326-30 (holding that a

defendant whose original sentence was based upon the career-offender guideline,

and not § 2D1.1, could not receive a sentence reduction based on Amendment 706

because it did not have the effect of lowering the applicable guideline range).

Furthermore, we held in Moore that a defendant’s receipt of a sentence below the

                                         4
              Case: 12-10662     Date Filed: 07/18/2012   Page: 5 of 5

Guidelines sentence range pursuant to the Government’s § 5K1.1 motion, as was

the case here, did not mean that the defendant had not been sentenced based on his

status as a career offender. Id. at 1330.

      AFFIRMED.




                                            5
