                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                 FILED
                                                         U.S. COURT OF APPEALS
                               No. 08-15650                ELEVENTH CIRCUIT
                           Non-Argument Calendar               APRIL 16, 2009
                         ________________________           THOMAS K. KAHN
                                                                 CLERK
                     D. C. Docket No. 98-00834-CR-FAM

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

FRANK HENRY LOWE,

                                                           Defendant-Appellant.

                         ________________________

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

                                (April 16, 2009)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Frank Henry Lowe appeals from the district court’s denial of his motion to

modify his sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706 to the

Sentencing Guidelines, which reduced the base offense levels applicable to crack
cocaine found in U.S.S.G. § 2D1.1. On appeal, Baxter, who was sentenced based

on his status as a career offender, argues that the district court erred in refusing to

reduce his sentence, on the ground that United States v. Moore, 541 F.3d 1323

(11th Cir. 2008), cert. denied, McFadden v. United States, 129 S. Ct. 965 (2009),

and cert. denied, __ S. Ct. __ (U.S. Mar. 9, 2009) (No. 08-8554), was wrongly

decided because the Supreme Court’s decision in United States v. Booker, 543

U.S. 220 (2005), rendered the Guidelines advisory and, thus, gave the district court

discretion to reduce his sentence despite the fact that he was sentenced as a career

offender. After thorough review, we affirm.

      “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 in the case of a

defendant who was sentenced to a term of imprisonment based on a sentencing

range that has subsequently been lowered 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

modification is not consistent with the Commission’s policy statements where an




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amendment “does not have the effect of lowering the defendant’s applicable

guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).

      Lowe’s arguments are foreclosed by precedent.        In Moore, we held that

where a defendant’s base offense level is calculated under the career offender

provision in U.S.S.G. § 4B1.1 rather than the drug quantity table in § 2D1.1(c),

Amendment 706 does not operate to lower the defendant’s guideline range and,

therefore, the defendant is not eligible for a sentence modification under

§ 3582(c)(2). 541 F.3d at 1330. Moreover, in United States v. Melvin, we held

that a district court’s discretion to reduce a defendant’s sentence in a § 3582(c)(2)

proceeding is limited by the Sentencing Commission’s applicable policy

statements. 556 F.3d 1190, 1192 (11th Cir. 2009), petition for cert. filed, (U.S.

Feb. 10, 2009) (No. 08-8664). Accordingly, the district court correctly determined

that it lacked authority to reduce Lowe’s sentence, and we affirm.

      AFFIRMED.




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