                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT                            FILED
                                                              U.S. COURT OF APPEALS
                   ------------------------------------------- ELEVENTH CIRCUIT
                                No. 08-13257                        DEC 22, 2008
                          Non-Argument Calendar                  THOMAS K. KAHN
                  --------------------------------------------        CLERK
                 D.C. Docket No. 05-14002-CR-KAM

UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

    versus

GERALDO BARRAZA-GARCIA,

                                                      Defendant-Appellant.

                     ________________________

                           No. 08-13258
                       Non-Argument Calendar
                     ________________________

                 D. C. Docket No. 05-14002-CR-KAM

UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                 versus

GINNY MARIE MOORE,

                                                      Defendant-Appellant.
                        --------------------------------------------
                     Appeals from the United States District Court
                         for the Southern District of Florida
                       -----------------------------------------------

                                   (December 22, 2008)

Before EDMONDSON, Chief Judge, CARNES and WILSON, Circuit Judges.

PER CURIAM:

       In this consolidated appeal, Geraldo Barraza-Garcia and Ginny Marie

Moore (“Appellants”), federal prisoners convicted of crack cocaine offenses,

appeal the denials of their motions to reduce their 72-month sentences, 18 U.S.C.

§ 3582(c)(2).1 No reversible error has been shown; we affirm.

       Appellants pleaded guilty to conspiracy to possess with intent to distribute

50 grams or more of crack cocaine. As such, both were subject to 120-month

mandatory minimum sentences under 21 U.S.C. § 841(b)(1)(A). Because of the

application of the mandatory minimum, the low end of Barraza-Garcia’s

Sentencing Guidelines range was reset to 120 months’ imprisonment. See

U.S.S.G. § 5G1.1(c)(2) (prohibiting a guidelines sentence below the statutory




       1
         Appellants were indicted together on drug conspiracy charges. Here, they appeal from
nearly identical district court orders and have raised identical arguments on appeal.

                                               2
mandatory minimum sentence).2 But the district court granted the government’s

substantial assistance motions, U.S.S.G. § 5K1.1, and both Appellants were

sentenced below the mandatory minimum.

       In their section 3582(c)(2) motions, Appellants sought sentencing

reductions based on Amendment 706 to the guidelines, which retroactively

reduced the base offense levels applicable to crack cocaine offenses. The district

court determined that Appellants were unentitled to sentencing reductions because

-- although Amendment 706 applied to them -- application of the mandatory

minimum caused the amendment not to have the effect of lowering their guideline

ranges.

       We review for an abuse of discretion a district court’s decision whether to

reduce a sentence under section 3582(c)(2). United States v. Brown, 332 F.3d

1341, 1343 (11th Cir. 2003). On appeal, Appellants argue that the district court

had authority to reduce their sentences because Amendment 706 lowered their

base offense levels and sentencing ranges.

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



       2
        Before application of the mandatory minimum, Appellants’ guideline ranges were
calculated under U.S.S.G. § 2D1.1(c), based on the amount of drugs involved in their offense.
After adjustments, Barraza-Garcia’s guideline range was 108 to 135 months’ imprisonment while
Moore’s was 140 to 175 months’ imprisonment.

                                             3
district court, “after considering the factors set forth in [18 U.S.C. §] 3553(a) to

the extent that they are applicable,” may reduce a previous sentence 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).

       Amendment 706 reduced by two the offense levels under section 2D1.1 in

crack cocaine cases. See U.S.S.G. App. C, Amend. 706 (2007). The Sentencing

Commission made this amendment retroactively applicable, effective as of 3

March 2008, by incorporation into U.S.S.G. § 1B1.10(c). See U.S.S.G. App. C,

Amend. 713 (Supp. May 1, 2008).3

       We have explained that “a reduction under [section] 3582(c)(2) is not

authorized where ‘the amendment . . . is applicable to the defendant but the

amendment does not have the effect of lowering the defendant’s applicable


       3
       The 1 March 2008 Supplement has been superseded by the 1 May 2008 Supplement and,
when used with the 2007 Manual, constitutes the operative Guidelines Manual effective 1 May
2008. See U.S.S.G. Cover (Supp. May 1, 2008).

                                             4
guideline range because of the operation of another guideline or statutory

provision (e.g., a statutory mandatory minimum term of imprisonment).’” United

States v. Moore, 541 F.3d 1323, 1327-28 (11th Cir. 2008) (quoting U.S.S.G. §

1B1.10, cmt. n.1(A) (Supp. May 1, 2008)) (omission in original). In Moore, we

concluded that Amendment 706 did not have the effect of lowering defendants’

applicable guideline ranges (even though it did lower defendants’ base offense

levels under section 2D1.1) because defendants’ guideline ranges were driven by

their career offender statuses, U.S.S.G. § 4B1.1. Id. at 1328; see also United

States v. Thomas, No. 08-11492, manuscript op. at 4 (11th Cir. Oct. 23, 2008)

(extending Moore’s reasoning to defendant sentenced as armed career criminal,

U.S.S.G. § 4B1.4).

      We conclude that the district court abused no discretion in denying

Appellants’ section 3582(c)(2) motions. While Amendment 706 applied to

Appellants and reduced their base offense levels, it did not lower their guideline

ranges because of the operation of the applicable statutory mandatory minimum;

that is, Appellants’ guideline ranges could not go below 120 months, no matter

their base offense levels as calculated based on drug quantity. That Appellants

received section 5K1.1 downward departures does not change this outcome. See

Moore, 541 F.3d at 1330 (two defendants who received downward departures

                                         5
despite being labeled career offenders unentitled to sentencing reduction because

career offender designation drove their final guideline ranges).4

       AFFIRMED.




       4
        We reject Appellants’ argument that being ineligible to receive additional sentencing
reductions penalizes them in comparison to defendants who do not offer substantial assistance;
Appellants are ineligible for a reduction because of the mandatory minimum, not because they
received section 5K1.1 downward departures. And because Appellants were ineligible for a
sentencing reduction, the district court was not required to consider sentencing disparities
between crack and power cocaine offenses or other section 3553(a) factors.


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