                                                               [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                  Aug. 5, 2009
                                No. 08-14470                    THOMAS K. KAHN
                            Non-Argument Calendar                   CLERK
                          ________________________

                        D. C. Docket No. 04-00175-CR-4

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

VIRGIL JAWAN SMITH,

                                                               Defendant-Appellant.


                          ________________________

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

                                 (August 5, 2009)

Before CARNES, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

     Virgil J. Smith, pro se, appeals the district court’s denial of his pro se motion
for a reduced sentence, filed pursuant to 18 U.S.C. § 3582(c)(2). Smith’s

§ 3582(c)(2) motion was based on Amendment 706 to the United States

Sentencing Guidelines, which reduced base offense levels applicable to crack

cocaine. On appeal, Smith argues that his career offender status is an enhancement

to the Guidelines sentencing range for crack cocaine offenders found in § 2D1.1.

He contends that because § 2D1.1 dictated his original base offense level,

Amendment 706 lowered his original Guidelines range. Next, Smith argues the

district court should have reduced his sentence in recognition of the factors listed

in 18 U.S.C. § 3553(a). Specifically, Smith argues that the court should have

reduced his sentence because of his efforts at rehabilitation. Lastly, Smith argues

that the Supreme Court recognized in Kimbrough v. United States, 552 U.S. 85,

128 S.Ct. 558, 169 L.Ed.2d 481 (2007), that crack cocaine sentences historically

have been unreasonably high. According to Smith, his sentence should be reduced

in light of this holding.

       “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). A district court may not modify a term of imprisonment

unless a defendant was sentenced based on a sentencing range that has

“subsequently been lowered” by the Sentencing Commission. See 18 U.S.C.



                                           2
§§ 3582(c)(1)(B), (c)(2). When the district court is determining whether to modify

a defendant’s sentence pursuant to § 3582(c)(2), “all original sentencing

determinations remain unchanged with the sole exception of the guideline range

that has been amended since the original sentencing.” United States v. Bravo, 203

F.3d 778, 781 (11th Cir. 2000) (emphasis in original).

      Amendment 706, which has been made retroactive, amends the Drug

Quantity Table in § 2D1.1(c) “to provide a two-level reduction in base offense

levels for crack cocaine offenses.” United States v. Moore, 541 F.3d 1323, 1325

(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). However, if a defendant is a

career offender, his base offense level is determined under the career-offender

guideline in § 4B1.1(b) and not the drug-quantity guideline in § 2D1.1(c). Id. at

1327-28. For this reason, we held in Moore that defendants who are sentenced

under the career-offender guideline are not sentenced under § 2D1.1, and therefore

Amendment 706 has no effect on their applicable guideline range. Id.

      Just as in Moore, Smith’s sentencing range was determined by his career-

offender status under U.S.S.G. § 4B1.1, and his crack cocaine base offense level

played no role in his ultimate sentence. Therefore, Smith is ineligible for relief

under Amendment 706. See Moore, 541 F.3d at 1327-28, 1330



                                           3
      Smith’s argument that he should receive a sentence reduction under

Kimbrough is foreclosed by precedent. See United States v. Melvin, 556 F.3d

1190, 1192-93 (11th Cir. 2009), cert. denied, (U.S. May 18, 2009) (No. 08-8664)

(holding that Kimbrough applies to original sentencing proceedings and does “not

address motions to reduce a sentence under § 3582(c)(2)”). Further, the court

could not have reduced Smith’s sentence based on his post-sentencing conduct,

standing alone, because § 3582(c)(2) only authorizes a court to reduce a sentence

where a defendant’s original sentencing range has been reduced by the Sentencing

Commission. See 18 U.S.C. § 3582(c)(2). We affirm.

      AFFIRMED.




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