                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            APRIL 22, 2009
                             No. 08-15367                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                 D. C. Docket No. 98-00171-CR-T-26MSS

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

WALTER JOHNSON,

                                                         Defendant-Appellant.


                       ________________________

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

                              (April 22, 2009)

Before BLACK, BARKETT and FAY, Circuit Judges.

PER CURIAM:
      Walter Johnson, through counsel, appeals from the district court’s denial of

his motion for a sentencing reduction, pursuant to 18 U.S.C. § 3582(c)(2). For the

reasons set forth below, we affirm.

                                          I.

      In 2000, a jury found Johnson guilty of conspiracy to possess with intent to

distribute more than 50 grams of crack cocaine, in violation of 21 U.S.C. §§ 846

and 841(a)(1), and possession with intent to distribute more than 50 grams of crack

cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

      The probation officer prepared a presentence investigation report (“PSI”)

and determined that Johnson was accountable for at least 2.5 kilograms of crack

cocaine, giving him a base offense level of 38, pursuant to U.S.S.G. § 2D1.1(c)(1).

Johnson also received a 2-level aggravating-role enhancement, giving him a total

offense level of 40. The probation officer then found that Johnson was a career

offender under U.S.S.G. § 4B1.1 because, inter alia, he had prior felony conviction

for carrying a concealed firearm, which was a “crime of violence.” Significantly,

the probation officer noted that, although Johnson’s status as a career offender

gave him a total offense level of 37, his otherwise applicable offense level of 40

was to be used because it was greater. The probation officer then found that

Johnson had a criminal history category of V based on his prior convictions, but,



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because Johnson was a career offender, he automatically received a criminal

history category of VI. An offense level of 40 and a criminal history category of

VI gave Johnson an applicable guideline range of 360 months to life imprisonment.

After adopting the factual findings and guideline calculations in the PSI, the

district court sentenced Johnson to 360 months’ imprisonment on each count, to

run concurrently.

      On April 4, 2008, Johnson filed a motion for a sentencing reduction,

pursuant to § 3582(c)(2). The court appointed counsel for Johnson, and counsel

argued that Johnson was not a career offender because, under this Court’s recent

decision in United States v. Archer, 531 F.3d 1347 (11th Cir. 2008), carrying a

concealed firearm was no longer a crime of violence. Assuming that he would no

longer automatically be subject to a criminal history category of VI, Johnson also

challenged the calculation of his criminal history score and argued that he should

have received a criminal history category of IV. He contended that this new

criminal history category of IV, coupled with a reduced offense level of 38 as

result of Amendment 706, gave him an amended guideline of 324 to 405 months’

imprisonment.

      The district court concluded that Johnson was ineligible for a sentencing

reduction. Relying on, inter alia, this Court’s decision in United States v. Moore,



                                          3
541 F.3d 1323 (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), the court

explained that Johnson was ineligible for a reduction because he was a career

offender. The court also found Johnson’s contention that he was no longer a career

offender to be without merit because Archer was not made retroactive, and, in the

§ 3582(c)(2) context, all original sentencing determinations remained unchanged

except for the guideline that is amended.

                                            II.

      “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). Under § 3582(c)(2), a district court may modify a

defendant’s term of imprisonment where he “has been sentenced to a term of

imprisonment based on a sentencing range that has subsequently been lowered by

the Sentencing Commission . . . .” 18 U.S.C. § 3582(c)(2). Any such reduction

must also be consistent with the Commission’s applicable policy statements, which

similarly provide, inter alia, that a sentencing reduction is not permitted where the

retroactive amendment “does not have the effect of lowering the defendant’s

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

                                         III.



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      The district court in this case erroneously concluded that, under Moore,

Johnson was not eligible for a sentencing reduction because he was a career

offender. In Moore, we addressed whether certain defendants who were convicted

of crack-cocaine offenses and who were sentenced as career offenders under

§ 4B1.1 were eligible for a sentencing reduction based on Amendment 706. We

determined that, “although Amendment 706 would reduce the base offense levels

applicable to the defendants, it would not affect their guideline ranges because they

were sentenced as career offenders under § 4B1.1.” Moore, 541 F.3d at 1330.

This was so because, under § 4B1.1, the defendants’ guideline ranges were

ultimately determined by the statutory maximum penalty for the offense, not the

base offense levels reduced by Amendment 706. See U.S.S.G. § 4B1.1(b)

(providing for superseding offense levels based on the statutory maximum penalty

where those levels are “greater than the offense level otherwise applicable”). This

case is not controlled by Moore because, although Johnson was sentenced as a

career offender, his applicable guideline range was determined by his base offense

level in § 2D1.1.

      Nonetheless, the district court ultimately reached the correct conclusion that

Johnson was ineligible for a sentencing reduction. This is so because, although

Amendment 706 would reduce Johnson’s total offense level from 40 to 38, the



                                          5
amendment would not affect Johnson’s criminal history category of VI. And an

offense level of 38, coupled with a criminal history category of VI, would give

Johnson an amended guideline range of 360 months to life imprisonment, the same

applicable guideline range upon which his original sentence was based.

See U.S.S.G. Ch. 5, pt. A. Thus, Amendment 706 would not have the effect of

lowering Johnson’s applicable guideline range.

      Johnson seeks to avoid this result by challenging his career-offender status

and his attendant criminal history category of VI. However, he may not do so in a

§ 3582(c)(2) motion because § 1B1.10 provides that “the court shall substitute only

the amendments listed in subsection (c) for the corresponding guideline provisions

that were applied when the defendant was sentenced and shall leave all other

guideline application decisions unaffected.” U.S.S.G. § 1B1.10(b)(1). We have

confirmed this directive. See United States v. Bravo, 203 F.3d 778, 781 (11th Cir.

2000) (“Indeed, we have held that 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. Vautier, 144 F.3d 756, 760 (11th

Cir. 1998) (“[O]nly the amended guideline range is changed. All other guideline

application decisions made during the original sentencing remain intact.”).

      In sum, Johnson was not eligible for a sentencing reduction under



                                          6
§ 3582(c)(2) because Amendment 706 would not have the effect of lowering his

sentencing range. Accordingly, we affirm.

      AFFIRMED.




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