                                                       [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________            FILED
                                                U.S. COURT OF APPEALS
                             No. 11-12174         ELEVENTH CIRCUIT
                                                      APRIL 13, 2012
                         Non-Argument Calendar
                                                       JOHN LEY
                       ________________________
                                                         CLERK

                     Docket No. 1:04-cr-21018-JIC-11


UNITED STATES OF AMERICA,
                                                          Plaintiff-Appellee,

     versus

LAPATRICK DEON MCINTOSH,
a.k.a. Pat,
a.k.a. Lapatrick Deon Macintoch,
a.k.a. Fat,

                                                  Defendant-Appellant.
              _________________________________________

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

                              (April 13, 2012)

Before EDMONDSON, WILSON, and BLACK, Circuit Judges.


PER CURIAM:
          LaPatrick Deon McIntosh, a pro se federal prisoner convicted of a crack

cocaine offense, appeals the district court’s denial of his motion for a sentence

reduction -- pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706 to the

Sentencing Guidelines1 -- and his motion for reconsideration. No reversible error

has been shown; we affirm.2

          During McIntosh’s original sentencing proceeding, a probation officer

calculated McIntosh’s total offense level as 38 -- pursuant to U.S.S.G. §

2D1.1(c)(3) and (b)(1) -- based on McIntosh’s possession of 1 kilogram of cocaine

base and his possession of a dangerous weapon. The probation officer then

concluded that McIntosh qualified as a career offender and that his resulting

offense level under U.S.S.G. § 4B1.1(b) was 37. Because McIntosh’s offense

level under section 4B1.1 was not “greater than the offense level otherwise

applicable,” McIntosh’s total offense level remained 38. McIntosh then received a

criminal history category of VI under section 4B1.1(b) because of his career

offender designation. McIntosh’s guidelines range was calculated as 360 months’




  1
   Amendment 706 retroactively reduced by two the base offense levels of crack cocaine sentences
calculated pursuant to the drug quantity table, U.S.S.G. § 2D1.1(c). U.S.S.G. App. C, Amend. 713
(Supp. 1 May 2008).
      2
     We review de novo the district court’s legal conclusions about the scope of its authority in a
section 3582(c)(2) proceeding. United States v. James, 548 F.3d 983, 984 (11th Cir. 2008).

                                                2
to life imprisonment; and the district court sentenced McIntosh to 360 months’

imprisonment.

      When a sentencing guideline is amended and given retroactive effect, the

district court may reduce an already incarcerated defendant’s term of

imprisonment under the amendment “if such a reduction is consistent with

applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. §

3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1). A reduction of a term of

imprisonment is not “consistent with applicable policy statements issued by the

Sentencing Commission” -- and is, therefore, unauthorized under section

3582(c)(2) -- if the retroactive amendment “does not have the effect of lowering

the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).

      Applying Amendment 706 retroactively to McIntosh’s case, his total

adjusted offense level under section 2D1.1 would become 36 instead of 38. This

includes a base offense level of 34 because he was held responsible for 1 kilogram

of cocaine base and a 2-level enhancement for possession of a dangerous weapon.

Because McIntosh’s career offender offense level of 37 is now higher than the

modified offense level of 36, his total offense level becomes 37 under section

4B1.1(b). See U.S.S.G. § 4B1.1(b) (providing that “if the offense level for a

career offender . . . is greater than the offense level otherwise applicable, the

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[career offender] offense level . . . shall apply”). Based on an offense level of 37

and a criminal history category of VI, McIntosh’s guidelines range is still 360

months’ to life imprisonment. Because the application of Amendment 706 did not

lower McIntosh’s applicable guidelines range, he is ineligible for relief under

section 3582(c)(2).

      AFFIRMED.




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