                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                        FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                           ________________________ ELEVENTH CIRCUIT
                                                                 JUNE 1, 2009
                                  No. 08-13643                 THOMAS K. KAHN
                              Non-Argument Calendar                CLERK
                            ________________________

                     D. C. Docket No. 02-00175-CR-T-27-MSS

UNITED STATES OF AMERICA,


                                                                    Plaintiff-Appellee,

                                       versus

GLENN BAKER,
a.k.a. Butterball,

                                                              Defendant-Appellant.


                            ________________________

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

                                   (June 1, 2009)

Before DUBINA, Chief Judge, TJOFLAT and BLACK, Circuit Judges.

PER CURIAM:
      Glenn Baker, proceeding pro se, appeals the district court’s denial of his 18

U.S.C. § 3582(c)(2) motion for a reduction of sentence based on Amendment 706,

which lowered the base offense levels applicable to crack cocaine offenses. In

2003, Baker pled guilty to one count of conspiracy to possess with intent to

distribute five grams or more of cocaine base, in violation of 21 U.S.C.

§§ 841(b)(1)(B)(iii) and 846. The Presentence Investigation Report (PSI)

determined Baker qualified as a career offender under U.S.S.G. § 4B1.1. The

district court adopted this factual finding in its judgment and assigned Baker a total

offense level of 31, after concluding Baker was entitled to a three-level reduction

for acceptance of responsibility. In this appeal, Baker argues the district court did

not sentence him as a career offender, and because he was never sentenced as a

career offender, the district court should have granted him the two-level reduction

based on Amendment 706.

      We review for an abuse of discretion a district court’s decision whether to

reduce a sentence based on a subsequent change in the Sentencing Guidelines.

United States v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003). We review de novo

the district court’s legal conclusions and questions of statutory interpretation in a

§ 3582(c)(2) proceeding. United States v. Moore, 541 F.3d 1323, 1326 (11th Cir.

2008), cert. denied, McFadden v. United States, 129 S. Ct. 965 (2009).



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      A district court may modify a term of imprisonment in the case of a

defendant who was sentenced based on a sentencing range that subsequently has

been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Any

reduction, however, must be “consistent with applicable policy statements issued

by the Sentencing Commission.” Id. A reduction of a term of imprisonment is not

“consistent with applicable policy statements issued by the Sentencing

Commission”—and is, therefore, not authorized under § 3582(c)(2)—if 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).

      In Moore, this Court addressed whether a defendant sentenced pursuant to

the career offender guideline is eligible for sentence reduction based on

Amendment 706. 541 F.3d at 1327. There, the defendants’ offense levels were

initially calculated based on the amount of crack cocaine involved. Id. at 1325.

The defendants, however, were ultimately sentenced as career offenders under

§ 4B1.1, which was not affected by Amendment 706. Id. We affirmed the denials

of their motions for sentence modification, holding, “[w]here a retroactively

applicable guideline amendment reduces a defendant’s base offense level, but does

not alter the sentencing range upon which his or her sentence was based,




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§ 3582(c)(2) does not authorize a reduction in sentence.” Id. at 1330; see also

U.S.S.G. § 1B1.10(a)(2)(B).

      In this case, the PSI initially assigned Baker a base offense level of 38 based

on his accountability for over 1.5 kilograms of cocaine base, pursuant to U.S.S.G.

§ 2D1.1, which was greater than the offense level of 34 under the career offender

guideline, U.S.S.G. § 4B1.1. The district court, however, sentenced Baker under

the career offender provision after finding that Baker was accountable for only five

grams of cocaine base. The court assigned Baker a total offense level of 31, which

included a three-level reduction for acceptance of responsibility, and sentenced

him to 130 months’ imprisonment, departing from the recommended Guidelines

range of 188–235 months because of the Government’s motion on account of

Baker’s substantial assistance.

      Like the defendants in Moore, Banker was sentenced based on a range that

was determined by application of the career offender provision. The offense level

that would have applied under § 2D1.1, based on the amount of crack cocaine

involved, ultimately played no role in Baker’s sentence. Because Amendment 706

“does not alter the sentencing range upon which his . . . sentence was based,”




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Baker is ineligible for sentence reduction. See Moore, 541 F.3d at 1330.

Accordingly, we affirm the denial of his § 3582(c)(2) motion.

      AFFIRMED.




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