                                                            [DO NOT PUBLISH]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. 08-15238                  THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                   D. C. Docket No. 05-00137-CR-RWS-1-1

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

KENNETH BREWSTER,

                                                            Defendant-Appellant.


                         ________________________

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

                                (April 22, 2009)

Before TJOFLAT, DUBINA and ANDERSON, Circuit Judges.

PER CURIAM:

     Kenneth Brewster, a federal prisoner convicted of possessing with the intent
to distribute at least five grams of crack cocaine, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(B)(iii), appeals the district court’s denial of his pro se

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

706 to the Sentencing Guidelines. On appeal, Brewster argues that he should have

received a two-level sentence reduction, despite his status as a career offender, in

light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621

(2005), and its progeny.

      We review a district court’s decision to deny reduction of a defendant’s

sentence pursuant to § 3582(c)(2) for abuse of discretion. United States v.

Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005). Under § 3582(c)(2), a district

court may not reduce the term of imprisonment of an already incarcerated

defendant unless that defendant has been sentenced pursuant to a guideline range

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

§ 3582(c)(2).

      Amendment 706 provides for a two-level reduction in the base offense level

for certain crack cocaine offenses. See U.S.S.G. App. C, Amend. 706. This

amendment was effective retroactively as of March 3, 2008. U.S.S.G. App. C,

Amend. 713. In Booker, the Supreme Court struck down the statutory provisions

that made the Sentencing Guidelines mandatory. Booker, 543 U.S. at 245, 258-60,



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125 S.Ct. at 756-67, 764-65. The Supreme Court further clarified that, under the

newly advisory Sentencing Guidelines, district courts possess the authority to

deviate from the 100-to-1 crack-to-powder cocaine ratio during sentencing.

Kimbrough v. United States, 552 U.S. ___, 128 S.Ct. 558, 575, 169 L.Ed.2d

481 (2007).

      In addressing a § 3582(c)(2) motion, a district court must engage in a two-

part analysis: (1) by recalculating the sentence based on the amendment, “leav[ing]

all other guideline application decisions unaffected;” and (2) by exercising its

discretion, based on the 28 U.S.C. 3553(a) factors, to impose a new sentence or to

retain the original. U.S.S.G. § 1B1.10(b)(1); and see United States v. Vautier, 144

F.3d 756, 760 (11th Cir. 1998). This requirement, however, “is triggered only by

an amendment . . . that lowers the applicable guideline range.” U.S.S.G. § 1B1.10,

comment. (n.1(A)).

      For example, “a reduction under § 3582(c)(2) is not authorized where ‘the

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.’” United States v. Moore, 541 F.3d 1323, 1327-28

(11th Cir. 2008) (quoting U.S.S.G. § 1B1.10, comment. (n.1(A))), cert. denied,

(U.S. Jan. 12, 2009) (No. 08-7610). Accordingly, we held that Amendment 706,



                                           3
which lowered base offense levels under U.S.S.G. § 2D1.1, could not provide relief

to defendants convicted of crack cocaine offenses who were sentenced as career

offenders under U.S.S.G. § 4B1.1, because U.S.S.G. § 2D1.1 “played no role” in

the calculation of their guideline ranges. Id. at 1327.

      This rule also applies to career offenders who received departures for

substantial assistance pursuant to U.S.S.G. § 5K1.1, where “the court did not find

that the seriousness of [the defendants’] criminal history would be overrepresented

by application of § 4B1.1,” and there was no indication “that the court based [the

defendants’] sentence[s] on the guideline range that would have applied absent the

career offender designation.” Id. at 1330. Finally, this court has held that Booker

does apply in resentencing pursuant to § 3582. United States v. Melvin, __ F.3d __

, 2009 WL 236053 at *3 (11th Cir. Feb. 3, 2009) (holding “that Booker and

Kimbrough do not apply to § 3582(c)(2) proceedings” and that “Booker and

Kimbrough do not prohibit the limitations on a judge's discretion in reducing a

sentence imposed by § 3582(c)(2) and the applicable policy statement by the

Sentencing Commission.”).

      We conclude that Brewster was not eligible for a § 3582(c)(2) sentence

reduction. Amendment 706 did not lower Brewster’s applicable guideline range,

because his sentence was controlled by the career offender guidelines and the crack



                                           4
cocaine base offense level ultimately played no role in his sentence. While he

received a downward departure, it was based on his substantial assistance pursuant

to U.S.S.G. § 5K1.1, rather than the guideline range that would have applied absent

the career offender designation or a finding by the district court that U.S.S.G. §

4B1.1 was overly harsh.

      Accordingly, the district court did not abuse its discretion by denying

Brewster’s § 3582(c)(2) motion, and we affirm.

      AFFIRMED.




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