                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                    FILED
                                                            U.S. COURT OF APPEALS
                                No. 08-14036                  ELEVENTH CIRCUIT
                                                                  APRIL 29, 2009
                            Non-Argument Calendar
                                                               THOMAS K. KAHN
                          ________________________
                                                                    CLERK

                      D. C. Docket No. 98-00715-CR-DLG

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                      versus

PAUL SEPULVEDA,

                                                             Defendant-Appellant.


                          ________________________

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

                                 (April 29, 2009)

Before TJOFLAT, DUBINA and WILSON, Circuit Judges.

PER CURIAM:

     Paul Sepulveda appeals the district court’s denial of his motion for a
sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 706,

which amended the base offense levels in U.S. Sentencing Guideline § 2D1.1(c)

applicable to crack cocaine offenses. The district court denied the motion, finding

that Sepulveda was sentenced as a career offender under U.S. Sentencing Guideline

§ 4B1.1, and thus, any reduction would not be consistent with the policy

statements issued by the Sentencing Commission.

      On appeal, Sepulveda argues that the district court had discretion to reduce

his sentence under § 3582 because he had received a downward departure based on

over-representation. Relying on United States v. Moore, 541 F.3d 1323 (11th Cir.

2008), cert. denied, ___ S. Ct. ____, 2009 WL 301854 (2009), Sepulveda asserts

that, although defendants sentenced as career offenders generally are not eligible

for Amendment 706 reductions, those defendants who receive downward

departures remain eligible for relief.

      “We review a district court’s decision not to reduce a sentence pursuant to §

3582(c)(2) for abuse of discretion.” United States v. Moreno, 421 F.3d 1217, 1219

(11th Cir. 2005) (per curiam). The district court may reduce the sentence of a

“defendant who has been sentenced to a term of imprisonment based on a

sentencing range that has subsequently been lowered by the Sentencing

Commission,” provided that “such a reduction is consistent with applicable policy



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

Moore, we held that, if the defendant was sentenced as a career offender under

U.S. Sentencing Guideline § 4B1.1, and the range was not affected by U.S.

Sentencing Guideline § 2D1.1, then the sentence is not “based on a sentencing

range that has subsequently been lowered.” 541 F.3d at 1327. We noted that the

base offense levels under U.S. Sentencing Guideline § 2D1.1 played no role in the

calculation of the career offender range for that defendant. Id. at 1327. As such,

even though Amendment 706 was retroactive, the district court was not authorized

to reduce the sentence. Id. at 1330.

      Similar to the defendants in Moore, the district court sentenced Sepulveda

by application of the career offender guideline in U.S. Sentencing Guidelines §

4B1.1, leaving untouched his offense level. Sepulveda’s downward departure only

affected his criminal history category and did not affect his status as a career

offender for purposes of calculating his Guidelines range. Thus, Sepulveda was

not sentenced under the otherwise applicable base offense level of 32 in U.S.

Sentencing Guidelines § 2D1.1, and the district court did not abuse its discretion in

determining that he was ineligible for relief under Amendment 706.

      In the alternative, Sepulveda argues that Moore was wrongly decided

because it results in a mandatory application of the guidelines, which violates the



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principles established in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738

(2005). However, § 3582(c)(2) allows district courts to reduce a sentence only

when a defendant “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). As such, Booker does not apply here. See

Moreno, 421 F.3d at 1220 (providing that “Booker is a Supreme Court decision,

not a retroactively applicable guideline amendment by the Sentencing

Commission. Therefore, Booker is inapplicable to § 3582(c)(2) motions.”); United

States v. Jones, 548 F.3d 1366, 1369 (11th Cir. 2008) (per curiam) (same). Thus,

Sepulveda’s argument is precluded by our precedent. Moreover, decisions of prior

panels are binding on subsequent panels, and can be overturned only by

intervening Supreme Court authority or this Court sitting en banc. See Bonner v.

City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981); United States v. Hogan,

986 F.2d 1364, 1369 (11th Cir. 1993).

      We conclude that the district court correctly ruled that it lacked authority to

reduce Sepulveda’s sentence pursuant to § 3582(c)(2). Upon review of the record

and the parties’ briefs, we discern no reversible error. Accordingly, we affirm.

      AFFIRMED.




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