              Case: 12-12325    Date Filed: 04/09/2013   Page: 1 of 3


                                                         [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                        ___________________________

                                No. 12-12325
                            Non-Argument Calendar
                        ___________________________

                  D.C. Docket No. 1:06-cr-00326-LSC-HGD-1



UNITED STATES OF AMERICA,

                                                               Plaintiff – Appellee,

                                      versus

GERALD SMITH, JR.,

                                                            Defendant – Appellant.

                        ____________________________

                   Appeal from the United States District Court
                      For the Northern District of Alabama
                      _____________________________

                                 (April 9, 2013)

Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:

      On January 7, 2007, Gerald Smith, having pled guilty to distribution of five

grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), was
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sentenced to a prison term of 235 months. In November 2008, Smith moved the

District Court pursuant to 18 U.S.C. § 358 (c)(2) to reduce his sentence based on

Amendment 706 to the Sentencing Guidelines relating to crack cocaine, U.S.S.G. §

2D.1. The court denied his motion because the Guidelines sentence range,

pursuant to which he had been sentenced, was not changed by the application of

Amendment 706. That is, because he had previously been convicted of at least two

controlled substance offenses, he had been sentenced pursuant to U.S.S.G. §

4B1.1(b)(B), as a career offender, rather than § 2D1.1.

      In January 2012, Smith filed a second § 3582(c)(2) motion for the reduction

of his sentence based on Amendment 750 to the Guidelines, what Smith labeled

the “permanent amendment” to U.S.S.G. § 2D.1. The court denied his motion, and

he appeals.

      We affirm the District Court’s ruling on the ground that Amendment 750

does not apply in this case. As noted above, Smith’s sentence was imposed

pursuant to the career offender guideline, § 4B1.1(b)(B), not § 2D1.1.

Accordingly, Amendment 750’s lowering of the § 2D1.1 base offense level “would

not lower the sentencing range upon which [Smith’s] sentence was based. United

States v. Moore, 541 F.3d 1323, 1327 (11th Cir. 2008) (affirming the denial of §

3582(c)(2) relief based on Amendment 706 where defendant was sentenced as a

career offender).

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AFFIRMED.




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