                                                    [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                   FILED
                                                          U.S. COURT OF APPEALS
                               No. 09-15194                 ELEVENTH CIRCUIT
                                                                MAY 12, 2010
                           Non-Argument Calendar
                         ________________________                JOHN LEY
                                                                  CLERK

                 D. C. Docket No. 06-00046-CR-FTM-29DNF

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                     versus

HECTOR ROY WATSON,

                                                            Defendant-Appellant.


                         ________________________

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

                                (May 12, 2010)

Before BIRCH, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

     Hector Roy Watson, pro se, appeals the district court’s denial of his 18
U.S.C. § 3582(c)(2) motion for a sentence reduction pursuant to Amendments 706

and 709 to the Sentencing Guidelines. After review of the record and the parties’

briefs, we AFFIRM.

                                    I. BACKGROUND

       Watson pled guilty in 2006 to two counts of possession with intent to

distribute five grams or more of crack cocaine, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(B)(iii). See R1-1, 33, 34; R4 at 5. The probation officer

who prepared the presentence investigation report (“PSI”) assigned Watson a base

offense level of 26, pursuant to U.S.S.G. § 2D1.1, but enhanced his offense level

to 34, pursuant to U.S.S.G. § 4B1.1(b)(B), after determining that Watson, who had

three prior felony convictions for “crimes of violence,” was a career offender.1

After subtracting three levels for acceptance of responsibility, Watson’s total

adjusted base offense level was 31. Based on his career offender status, Watson’s

criminal history category was determined to be VI, yielding an advisory guidelines

range of 188 to 235 months of imprisonment.

       At sentencing, Watson challenged his career offender designation on the

grounds that his three prior state convictions, which he argued were part of a



       1
       Walter had two prior state felony convictions for aggravated assault with a deadly
weapon and one prior conviction for aggravated assault.

                                               2
common course of conduct that occurred without an intervening arrest, should

have been counted as a single conviction for enhancement purposes. R3 at 15-18,

23. The district court rejected Watson’s argument, finding that his prior

convictions were separate because they: (1) did not occur on the same occasion;

(2) were not part of a single, common scheme or plan; and (3) were not

functionally consolidated for sentencing, even though Watson was sentenced on

the same day for all three convictions. Id. at 23-25. The district court nevertheless

determined that Watson’s improved behavior after his release on bond indicated

that he was amenable to rehabilitation and varied downward to impose 120-month

sentences for each count, to run concurrently. See R2 at 93-97. We affirmed

Watson’s sentences on direct appeal. See R1-53.

      Watson thereafter filed a § 3582(c)(2) motion for a sentence reduction based

on Amendment 706 to the Sentencing Guidelines. See R1-59. The district court

denied the motion, finding that Amendment 706 was inapplicable because

Watson’s sentences were based on his career offender designation under § 4B1.1

and not on a drug quantity determined under § 2D1.1. R1-60 at 2-3. Watson

moved for reconsideration, arguing that his three underlying predicate offenses

were “related” and, pursuant to Amendment 709, should not have been considered

separately for purposes of the career offender enhancement. R1-61 at 1-3. The

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district court denied Watson’s motion for reconsideration, and this appeal

followed. R1-62, 63.

                                 II. DISCUSSION

      We “review de novo a district court’s conclusions about the scope of its

legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d

983, 984 (11th Cir. 2008).

      On appeal, Watson argues that, in denying his § 3582 motion for reduction

of sentence based on Amendment 706, the district court should have reconsidered

his career offender designation in light of Amendment 709, which requires district

courts, when assessing a defendant’s criminal history, to treat as a single sentence

all prior sentences that were imposed on the same day. See U.S.S.G. § 4A1.2(a)(2)

(Nov. 1, 2007). He asserts that application of Amendment 709 would have

resulted in his three prior state convictions being counted as only one predicate

offense for career offender purposes. Watson also argues that if Amendment 709

were applied to nullify his career offender status, then he would be entitled to a

sentence reduction by virtue of Amendment 706.

      Section 3582(c)(2) grants district courts the discretion to reduce a

previously imposed sentence “if such a reduction is consistent with the applicable

policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).

                                          4
The relevant policy statement on retroactive reduction of sentences provides that a

sentence reduction is authorized under § 3582(c)(2) only where the applicable

guideline range was lowered as a result of an amendment to the Guidelines

Manual enumerated under § 1B1.10(c).2 See U.S.S.G. § 1B1.10(a); United States

v. Pelaez, 196 F.3d 1203, 1205, n.3 (11th Cir. 1999) (holding that only the

amendments listed in § 1B1.10(c) may be applied retroactively using a

§ 3582(c)(2) motion). Therefore, a reduction in the defendant’s term of

imprisonment is not consistent with this policy statement and is not authorized

under § 3582(c)(2) if (a) none of the amendments listed in subsection (c) is

applicable to the defendant; or (b) an amendment listed in subsection (c) does not

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

operation of another guideline or statutory provision (e.g., a statutory mandatory

minimum term of imprisonment). U.S.S.G. § 1B1.10, comment. (n.1).

       We readily reject Watson’s argument that the district court erred in failing

to reduce his sentences based on Amendment 709, as that amendment is not

among those listed in § 1B1.10(c) as retroactively applicable. To the extent

Watson asserts that he was entitled to a sentence reduction based on Amendment


       2
         The following amendments are listed under U.S.S.G. § 1B1.10(c) as retroactively
applicable: 126, 130, 156, 176, 269, 329, 341, 371, 379, 380, 433, 454, 461, 484, 488, 490, 499,
505, 506, 516, 591, 599, 606, 657, 702, 706 as amended by 711, and 715. U.S.S.G. § 1B1.10(c).

                                               5
706, his argument is foreclosed by our decision in United States v. Moore, 541

F.3d 1323, 1327-28 (11th Cir. 2008), cert. denied, McFadden v. United States,

129 S. Ct. 965, and cert. denied, 129 S. Ct. 1601 (2009) (holding that a defendant

whose sentence is based on his status as a career offender under § 4B1.1 is not

entitled to § 3582(c)(2) relief because Amendments 706 and 713 do not lower the

applicable guideline range for a career offender). Accordingly, the judgment of

the district court is AFFIRMED.




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