                                                               [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                 AUGUST 5, 2009
                                No. 08-13741                    THOMAS K. KAHN
                            Non-Argument Calendar                   CLERK
                          ________________________

                    D. C. Docket No. 01-00457-CR-JOF-1-1

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

MARION PITTS,
a.k.a. Holy,

                                                              Defendant-Appellant.


                          ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       _________________________

                                 (August 5, 2009)

Before CARNES, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

     Marion Pitts, proceeding pro se, appeals the district court’s denial of his
motion for a reduced sentence, which was filed pursuant to 18 U.S.C. § 3582(c)(2),

and based on Amendment 706 to the Sentencing Guidelines, which reduced the

base offense levels applicable to crack cocaine offenses. On appeal, Pitts argues

that the district court erred in denying his § 3582(c)(2) motion based on his

career-offender status because his offense level, calculated under U.S.S.G.

§ 2D1.1, actually was utilized to sentence him, because it was greater than his

offense level under U.S.S.G. § 4B1.1, the career-offender provision. He further

contends that, because the district court departed downward for his substantial

assistance under U.S.S.G. § 5K1.1 and Fed.R.Crim.P. 35(b), his offense level, after

applying Amendment 706, would be reduced to 29, and his sentencing range

would be lowered to 151 to 188 months’ imprisonment.

      In a § 3582(c)(2) proceeding,“we review de novo the district court’s legal

conclusions regarding the scope of its authority under the Sentencing Guidelines.”

United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002). “We review de novo

questions of statutory interpretation.” United States v. Maupin, 520 F.3d 1304,

1306 (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 such reduction must be consistent with



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the Commission’s applicable policy statements, which similarly provide, inter alia,

that a sentencing reduction is not permitted where 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).

      The district court in this case erroneously concluded that Pitts was not

eligible for a sentencing reduction because he was a career offender. Although

Pitts was a career offender, his applicable guideline range was determined by his

base offense level in § 2D1.1, because his otherwise applicable offense level of 39

was greater than the offense level prescribed by § 4B1.1. Nonetheless, the district

court ultimately reached the correct conclusion that Pitts was ineligible for a

sentencing reduction because although Amendment 706 would reduce his total

offense level from 39 to 37, it would not affect his sentencing range. An offense

level of 37, coupled with a criminal history category of VI, would give Pitts an

amended guideline range of 360 months to life imprisonment, the same applicable

guideline range upon which his original sentence was based. The downward

departures that Pitts received, under § 5K1.1 and Rule 35(b), do not affect this

analysis. See United States v. Vautier, 144 F.3d 756, 762 (11th Cir. 1998) (stating

that “the benefit accruing from a lower sentence range under an amended guideline

is independent of any prior substantial-assistance downward departure . . . .”).



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Accordingly, we affirm.

      AFFIRMED.




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