                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                     FILED
                                                             U.S. COURT OF APPEALS
                                No. 08-17126                   ELEVENTH CIRCUIT
                                                                   MAY 29, 2009
                            Non-Argument Calendar
                                                                THOMAS K. KAHN
                          ________________________
                                                                     CLERK

                    D. C. Docket No. 06-00326-CR-LSC-HGD

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                       versus

GERALD SMITH, JR.,

                                                              Defendant-Appellant.

                          ________________________

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

                                  (May 29, 2009)

Before CARNES, MARCUS and FAY, Circuit Judges.

PER CURIAM:

      Gerald Smith, proceeding pro se, appeals from the district court’s denial of his

motion for a sentence reduction, filed pursuant to 18 U.S.C. § 3582(c)(2), and based
on Amendment 706 to the United States Sentencing Guidelines, which reduced base

offense levels applicable to crack cocaine offenses. On appeal, Smith acknowledges

that he was sentenced as a career offender under U.S.S.G. § 4B1.1, but contends that

he was nevertheless eligible for a sentence reduction in light of Amendment 706.

After careful review, we affirm.

      “In a § 3582(c)(2) proceeding, we review de novo the district court’s legal

conclusions regarding the scope of its authority under the Sentencing Guidelines” as

well as all “questions of statutory interpretation.” United States v. Moore, 541 F.3d

1323, 1326 (11th Cir. 2008), cert. denied, McFadden v. United States, 129 S. Ct. 965

(2009), and cert. denied, 129 S. Ct. 1601 (2009) (quotation marks and citations

omitted).

      Under § 3582(c)(2), a district court may reduce the sentence of a defendant

who was 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).

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

4B1.1 and the range was not affected by U.S.S.G. § 2D1.1, then his sentence is not

“based on a sentencing range that has subsequently been lowered.” 541 F.3d at

1327-28. We have also held that a defendant is not entitled to a § 3582(c)(2)




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reduction by virtue of the advisory nature of the guidelines. United States v. Jones,

548 F.3d 1366, 1369 (11th Cir. 2008), cert. denied, 129 S. Ct. 1657 (2009).

      There is no merit to Smith’s argument that the district court incorrectly

determined that it was not authorized to reduce Smith’s sentence. First, 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. Thus, Smith was not sentenced under the otherwise applicable

base offense level set forth in U.S.S.G. § 2D1.1, and he is ineligible for relief under

Amendment 706. See Moore, 541 F.3d at 1327-28, 1330; U.S.S.G. § 1B1.10,

comment. (n.1(A)) (prohibiting reduction where “amendment does not have the effect

of lowering the defendant’s applicable guideline range because of the operation of

another guideline”). Second, the district court did not have authority to reduce

Smith’s sentence by virtue of the advisory nature of the guidelines. Jones, 548 F.3d

at 1369. Third, because Smith’s guideline range did not change, the court was not

required to consider the § 3553(a) sentencing factors. See United States v. Webb, __

F.3d __, No. 08-13405, manuscript op. at 6 (11th Cir. Apr. 13, 2009) (“Given that

[defendant’s] sentencing range did not change, the district court correctly recognized

that it had no authority under § 3582(c)(2) to reduce his sentence and that it did not

need to examine the 18 U.S.C. § 3553(a) factors.”). Finally, to the extent Smith

                                          3
contends that his sentence was unreasonable, his argument is outside the scope of the

present § 3582 proceeding. See 18 U.S.C. § 3582(c)(2) (limiting proceedings under

this statute to cases where a retroactive amendment affects the applicable guideline

range).

      AFFIRMED.




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