                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-12646                ELEVENTH CIRCUIT
                                                             APRIL 30, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                D. C. Docket No. 00-00005-CR-OC-10-GRJ

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

SERVANDO FERGUSON,

                                                         Defendant-Appellant.


                       ________________________

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

                              (April 30, 2009)

Before BLACK, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
      Servando Ferguson, a federal prisoner convicted of crack cocaine offenses,

appeals the district court’s denial of his counseled 18 U.S.C. § 3582(c)(2) motion

for reduction of sentence based on Amendment 706 to U.S.S.G. § 2D1.1, which

lowered the base offense levels applicable to crack cocaine offenses.

      Ferguson contends that he was not sentenced as a career offender pursuant to

U.S.S.G. § 4B1.1, but instead was sentenced pursuant to U.S.S.G. § 2D1.1, and, for

that reason United States v. Moore, 541 F.3d 1323 (11th Cir. 2008), cert. denied

sub nom. McFadden v. United States, 129 S. Ct. 965 (2009), is inapplicable and he

is entitled to § 3582 relief. To the contrary, Ferguson was sentenced as a career

offender pursuant to § 4B1.1, instead of based on the drug quantity in § 2D1.1.

The applicable base offense level under § 4B1.1 applied because it was greater

than the § 2D1.1 base offense level. See U.S.S.G. § 4B1.1(b) (stating that the base

offense level in § 4B1.1 applies as long as it is higher than the “offense level

otherwise applicable,” such as the levels under § 2D1.1). Because Ferguson was

sentenced based on the career offender guideline section, the base offense levels

under § 2D1.1 “played no role in the calculation of [the guideline] range[ ],” and

the lowering of the § 2D1.1 levels did not lower his guideline range, the Moore

decision applies. See Moore, 541 F.3d at 1327; see also U.S.S.G. § 1B1.10 cmt.

n.1(A) (stating that a reduction under § 3582(c)(2) is not authorized where “the



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amendment . . . is applicable to the defendant but the amendment does not have the

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

operation of another guideline or statutory provision”).

      Ferguson also contends that United States v. Booker, 543 U.S. 220, 125 S.

Ct. 738 (2005), rendered the Guidelines advisory in the § 3582 context. That

argument is precluded by our decision in United States v. Melvin, 556 F.3d 1190

(11th Cir. 2009). Ferguson asks that we hold his case in abeyance pending the

resolution of the petition for hearing en banc in United States v. Argro, No. 08-

14591. We decline to do so because the filing of a petition for hearing en banc has

no effect on the precedential effect of any of our decisions.

      AFFIRMED.




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