                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-15545                ELEVENTH CIRCUIT
                                                            OCTOBER 5, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                   D. C. Docket No. 06-20501-CR-UUB

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

RODRICK CLAYTON,

                                                         Defendant-Appellant.


                       ________________________

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

                             (October 5, 2009)

Before CARNES, WILSON and FAY, Circuit Judges.

PER CURIAM:
      Rodrick Clayton appeals from the denial of his motion for a sentencing

reduction, pursuant to 18 U.S.C. § 3582(c)(2). For the reasons set forth below, we

affirm.

                                          I.

      Clayton pled guilty in 2007 to conspiracy to possess with intent to distribute

five grams or more of crack cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1),

and (b)(1)(B). In calculating Clayton’s guideline range, the probation officer first

determined that Clayton was responsible for at least 20, but less than 35, grams of

crack cocaine, thereby giving him a base offense level of 28, pursuant to U.S.S.G.

§ 2D1.1(c)(6). However, the probation officer also determined that Clayton was a

career offender under U.S.S.G. § 4B1.1. Clayton’s status as a career offender gave

him a new, superseding offense level of 34 and a criminal history category of VI.

The probation officer awarded Clayton a 3-level reduction for acceptance of

responsibility, giving him a total offense level of 31, which, when combined with

his criminal history category of VI, produced an applicable guideline range of 188

to 235 months’ imprisonment. There were no objections to the PSI.

      At sentencing, the government requested the district court to sentence

Clayton at the low-end of the guideline range and, in light of Clayton’s substantial

assistance, “depart[] downward by 20% from the Guidelines range” to a sentence



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of 150 months’ imprisonment, pursuant to U.S.S.G. § 5K1.1. The district court

granted both of the government’s requests and accordingly sentenced Clayton to

150 months’ imprisonment.

      On March 18, 2008, Clayton, relying on Amendment 706 to the Guidelines,

submitted a pro se motion for a sentencing reduction, pursuant to 18 U.S.C.

§ 3582(c)(2). The government responded that, since Clayton was sentenced as a

career offender, Amendment 706 did not affect his applicable guideline and

therefore did not entitle him to a sentencing reduction. The district court appointed

Clayton an attorney, who countered by emphasizing that, in imposing a sentence

below the guideline range, the district court “made clear that the career offender

provisions were not [applicable] to Mr. Clayton’s case.” The district court denied

Clayton’s motion, agreeing with the government that, because Clayton was

sentenced as a career offender, Amendment 706 “ha[d] no bearing on [his] total

offense level.” This appeal followed.

                                         II.

      “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). Under § 3582(c)(2), a district court may modify a

defendant’s term of imprisonment where he “has been sentenced to a term of



                                          3
imprisonment based on a sentencing range that has subsequently been lowered by

the Sentencing Commission . . . .” 18 U.S.C. § 3582(c)(2); see also U.S.S.G.

§ 1B1.10(a)(2)(B) (same). Construing this language of § 3582(c)(2), we have held

that certain defendants who were sentenced as career offenders were ineligible for

a sentencing reduction under Amendment 706 because that amendment would not

reduce their applicable guideline ranges. United States v. Moore, 541 F.3d 1323,

1330 (11th Cir. 2008) (“[A]lthough Amendment 706 would reduce the base

offense levels applicable to the defendants, it would not affect their guideline

ranges because they were sentenced as career offenders under § 4B1.1.”),

cert. denied, McFadden v. United States, 129 S.Ct. 965, and cert. denied, 129 S.Ct.

1601 (2009); see U.S.S.G. § 4B1.1(b) (providing for superseding offense levels

based on the statutory maximum penalty where those levels are “greater than the

offense level otherwise applicable”).

                                         III.

      In this case, Clayton correctly acknowledges that our decision in Moore

controls. This is so because Clayton’s offense level was based on his status as a

career offender, and, thus, Amendment 706 would not affect his applicable

guideline range. See Moore, 541 F.3d at 1330. Although Clayton contends that

Moore was wrongly decided, we are bound by the panel’s decision in that case



                                           4
unless overruled by the Supreme Court or this Court sitting en banc. United States

v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008), cert. denied, 129 S.Ct.

2825 (2009). In this regard, Clayton has abandoned his argument, raised below,

that he was not sentenced as a career offender in light of the district court’s

downward departure under § 5K1.1. See United States v. Cunningham, 161 F.3d

1343, 1344 (11th Cir. 2008) (arguments not raised on appeal are abandoned).

Finally, because Clayton is not eligible for a sentencing reduction, the district court

had no occasion to consider the crack/powder cocaine disparity or the factors in 18

U.S.C. § 3553(a). See United States v. Webb, 565 F.3d 789, 793 (11th Cir. 2009).

Accordingly, we affirm the denial of Clayton’s § 3582(c)(2) motion.

      AFFIRMED.




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