                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                   FILED
                                                        U.S. COURT OF APPEALS
                              No. 08-12126                ELEVENTH CIRCUIT
                                                              APRIL 27, 2009
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                 CLERK

                   D. C. Docket No. 05-80143-CR-DTKH

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

CHRISTOPHER PHILIP DILEO,
a.k.a. Philip Dileo,

                                                          Defendant-Appellant.


                        ________________________

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

                               (April 27, 2009)

Before BIRCH, HULL and FAY, Circuit Judges.

PER CURIAM:
       Christopher Philip Dileo, who was convicted of, inter alia, a crack cocaine

offense, appeals through counsel the district court’s denial of his pro se motion for

modification of sentence, pursuant to 18 U.S.C. § 3582(c)(2) and based on

Amendment 706, which reduced the base offense levels applicable to crack cocaine

offenses. The district court denied the motion because Dileo’s base offense level

was determined using the career-offender guideline, U.S.S.G. § 4B1.1, rather than

the drug-quantity guideline, U.S.S.G. § 2D1.1. Dileo argues that this was error

because he actually was not sentenced as a career offender, given that the district

court granted a downward departure from the career-offender guideline

imprisonment range because of his diminished mental capacity. Dileo also argues

that the Sentencing Guidelines are merely advisory, and that the district court

should have departed beyond two levels in light of the continued sentencing

disparity between cocaine powder and crack cocaine. Based on our precedent in

United States v. Moore, 541 F.3d 1323, 1326 (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), we affirm.1

       We review de novo “the district court’s legal conclusions regarding the


       1
         Upon Dileo’s appeal from the district court’s denial of his motion, we ordered Dileo’s
appeal stayed pending resolution of Moore. After deciding Moore, we directed the parties to
advise whether any issues remained unresolved. Based on the parties’ responses, we ordered
that the matter be briefed.

                                                2
scope of its authority under the [Guidelines].” Id. Pursuant to § 3582(c)(2), when

an already-incarcerated defendant’s sentence was determined using a guideline

range that retroactive amendments to the Guidelines have reduced, the district

court may reduce the sentence, after considering the factors set forth in 18 U.S.C.

§ 3553(a) and if such a reduction would be consistent with the policy statements

issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Pursuant to

§ 1B1.10, a reduction is not consistent with its policy statements if the retroactive

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

guideline range. U.S.S.G. § 1B1.10(a)(2)(B).

       In Moore, we held that, when a defendant was sentenced as a career

offender, and § 2D1.1 played no role in the calculation of his career offender

guideline range, his sentenced was not “based on a sentencing range that has

subsequently been lowered” and the district court lacked authority to grant a

reduction under Amendment 706. 541 F.3d at 1327-28, 1330. We held that this

was so even when a defendant was granted a downward departure based on

diminished capacity. Id. at 1330. We reasoned that, because the district court did

not calculate the defendant’s guideline range using § 2D1.1, her sentence was not

affected by Amendment 706. Id.

      The district court did not err in denying Dileo’s motion. See id. at 1326.



                                           3
Nothing in the record suggests that the holding in Moore, that defendants who are

sentenced as career offenders are not entitled to reductions, even if they are granted

a downward departure, does not apply. See id. at 1327-28, 1330. The district

court set Dileo’s base offense level pursuant to § 4B1.1. The district court’s

downward departure was taken from this base offense level. Because he was not

sentenced based upon the § 2D1.1 base offense level, Amendment 706 did not

affect Dileo’s sentence. See id. To the extent that Dileo argues that United States

v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), gave the district

court an independent basis to grant a sentencing reduction, his argument is

foreclosed by United States v. Melvin, 556, F3d 1190, 1192-93 (11th Cir. 2009)

(holding that Booker “do[es] not prohibit the limitations on a judge’s discretion in

reducing a sentence imposed by § 3582(c)(2) and the applicable policy statement

by the Sentencing Commission”), petition for cert. filed, (U.S. Feb. 10, 2009) (No.

08-8664). Accordingly, we affirm.

      AFFIRMED.




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