                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                               No. 08-13881                     MAY 13, 2009
                           Non-Argument Calendar              THOMAS K. KAHN
                                                                  CLERK
                         ________________________

                 D. C. Docket No. 04-00104-CR-FTM-33-DNF

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

LISA HARRIS,

                                                             Defendant-Appellant.


                         ________________________

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

                                 (May 13, 2009)

Before TJOFLAT, PRYOR and FAY, Circuit Judges.

PER CURIAM:

     On November 30, 2005, the district court, after accepting appellant’s plea of
guilty, sentence appellant to concurrent prison sentences of 235 months for

conspiracy to possess with intent to distribute five grams or more of cocaine base,

in violation of 21 U.S.C. § 846, and for possession with intent to distribute fifty

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

       In March 2008, appellant moved the district court to reduce her sentences

pursuant to Amendment 706 to the Sentencing Guidelines, which reduces the

offense levels for cocaine base. The court denied her motion, concluding that since

her offense level was determined under the career offender Guideline, she was

ineligible for a sentence reduction under Amendment 706. She now appeals

contending that, although she qualified as a career offender at sentencing, the court

departed downward based upon the finding that her criminal history category

overstated her criminal record. Accordingly, she contends that she is eligible for

sentence reduction under Amendment 706.

       A district court may reduce the sentence “of a defendant who has been

sentenced to a term of imprisonment based on a sentencing range that has

subsequently been lowered by the Sentencing Commission.” 18 U.S.C.


       1
         The presentence report, and the district court, calculated appellant’s base offense level
at 32 under U.S.S.G. § 2D1.1(c)(4), and determined that she was a career offender under
U.S.S.G. § 4B1.1. Because the statutory maximum sentence life imprisonment, her offense level
became 37. After reducing that level for her acceptance of responsibility and reducing her
criminal history category to V, the court arrived as a sentence range of 235 to 293 months’
imprisonment.

                                                2
§ 3582(c)(2). Any reduction, however, must be “consistent with applicable policy

statements issued by the Sentencing Commission.” Id The applicable policy

statements provide that “a reduction in the defendant’s term of imprisonment is not

authorized under 18 U.S.C. 3582(c)(2) and is not consistent with this policy

statement if” a retroactive amendment applies to the defendant but “does not have

the effect of lowering the defendant’s applicable guideline range because of the

operation of another guideline or statutory provision.” U.S.S.G. § 1B1.10,

comment. (n.1(A)).

      Here, although, at sentencing, the district court departed downward in

arriving at appellant’s criminal history category, her offense level was calculated

by application of the career offender provision. Thus, the sentence range upon

which her sentences were based was not affected by Amendment 706, and she is

ineligible for sentence reduction. See 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, (U.S. Mar. 9, 2009) (No. 08-8554).

      AFFIRMED.




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