                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                               No. 08-14828                 ELEVENTH CIRCUIT
                                                                JUNE 2, 2009
                           Non-Argument Calendar
                                                             THOMAS K. KAHN
                         ________________________
                                                                  CLERK

                  D. C. Docket No. 04-00067-CR-T-26-MAP

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

LEE CURTIS ROBINSON,
a.k.a. Fat,

                                                            Defendant-Appellant.


                         ________________________

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

                                 (June 2, 2009)

Before CARNES, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

     Lee Curtis Robinson challenges the district court’s order denying his 18
U.S.C. § 3582(c)(2) motion to modify his sentence. Robinson contends that he is

entitled to a sentence reduction under Amendment 706 to the sentencing

guidelines, which reduced the base offense levels applicable to certain crack

cocaine offenses. The district court ruled that it lacked the authority to reduce

Robinson’s sentence under Amendment 706 because he was sentenced as a career

offender.

      “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). Any sentence reduction under § 3582(c)(2) must be

“consistent with applicable policy statements issued by the Sentencing

Commission.” 18 U.S.C. § 3582(c)(2). The sentencing guidelines 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, cmt n.1(A). A defendant

sentenced under § 4B1.1 of the guidelines is not entitled to § 3582 relief because

Amendments 706 and 713 do not lower the applicable guideline range for career

offenders. See United States v. Moore, 541 F.3d 1323, 1327 (11th Cir. 2008).



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      It is undisputed that Robinson’s guideline range was determine by applying

the career offender provision of U.S.S.G. § 4B1.1. Robinson contends, however,

that Moore is distinguishable because here the district court applied a downward

variance under 18 U.S.C. § 3553 and sentenced Robinson based on an offense level

of 31, instead of the guidelines level of 34. He argues that by applying that

downward variance, the district court implicitly determined that the career offender

provision overstated his criminal history because the downward variance had the

same effect as not considering him a career offender. He argues, therefore, that he

was not sentenced as a career offender and is eligible for a sentence reduction

under Amendment 706. That arguments fails. The district court never suggested

that it was not considering Robinson a career offender or that Robinson’s criminal

history was overrepresented by the application of the career offender provision.

Instead, the district court varied downward from the guideline range under 18

U.S.C. § 3553(a)(6) to avoid an unwarranted sentencing disparity between

Robinson and a codefendant. Robinson was still sentenced under the career

offender provision, and therefore, he is not entitled to a sentence reduction under

Amendment 706.

      AFFIRMED.




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