                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                               No. 08-11486                 ELEVENTH CIRCUIT
                                                                MAY 21, 2009
                           Non-Argument Calendar
                                                             THOMAS K. KAHN
                         ________________________
                                                                  CLERK

                   D. C. Docket No. 03-00134-CR-J-12-HTS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

KENNETH W. MITCHELL,

                                                            Defendant-Appellant.


                         ________________________

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

                                (May 21, 2009)

Before TJOFLAT, BIRCH and HULL, Circuit Judges.

PER CURIAM:

     In October 2003, after Kenneth W. Mitchell pled guilty to distribution of
cocaine base, the district court sentenced him to prison for a term of 151 months.

On March 3, 2008, proceeding pro se, he moved the district court pursuant to 18

U.S.C. § 3582(c)(2) and Amendment 706 to the Sentencing Guidelines, which

lowered the base offense level for cocaine base offenses, to reduce his sentence.

The court denied his motion. He now appeals.

      Mitchell argues that the district court erred in denying his motion because,

although he was sentenced as a career offender, under U.S.S.G. § 4B1.1, his

original base offense level should still have been recalculated. He also contends

that, because this court, in United States v. Moore, 541 F.3d 1323, 1326 (11th Cir.

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

denied, (U.S. Mar. 9, 2009) (No. 08-8554), did not determine whether United

States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), applies to

§ 3582(c)(2) proceedings, Booker should be applied to reduce his sentence range

and thus his sentence.

      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). In Moore, we held that, if the defendant was sentenced as a

career offender, and the sentence range was not affected by U.S.S.G. § 2D1.1, then



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his sentence was not “based on a sentencing range that has subsequently been

lowered.” Moore, 541 F.3d at 1327-28. There, we noted that the base offense

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

sentence range for the defendant. Id. at 1327. Thus, the district court was not

authorized to reduce the sentence under Amendment 706. Id. at 1330.

      Because Mitchell was sentenced as a career offender, the crack cocaine base

offense level played no ultimate role in the determination of his sentence;

therefore, the district court correctly determined that Mitchell was not eligible for a

sentence reduction pursuant to Amendment 706. Moreover, the court did not have

authority to reduce Mitchell’s sentence under Booker. See United States v. Jones,

548 F.3d 1366, 1369 (11th Cir. 2008) (holding that Booker itself does not render a

defendant eligible for a sentence reduction under § 3582(c)(2)), cert. denied, (U.S.

Mar. 23, 2009) (No. 08-8865).

      Mitchell next argues that the district court erred by failing to appoint counsel

for his § 3582(c)(2) proceedings. We review the right to counsel in a § 3582(c)(2)

proceeding de novo. Webb, No. 08-13405, manuscript op. at 7. “A district court’s

decision not to appoint counsel is reviewed for an abuse of discretion.” Id. In

Webb, we held that “there is no statutory or constitutional right to counsel for a §

3582(c)(2) motion or hearing.” Id. at 11. As a result, “the decision to appoint an



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attorney is left to the discretion of the district court.” Id. Here, the court did not

abuse its discretion.

      AFFIRMED.




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