United States v. Harold Johnson

329 F. App'x 254

Opinion

PER CURIAM:

Harold Johnson 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. Johnson is a federal prisoner previously convicted of conspiracy to possess with intent to distribute over 50 grams of cocaine base, in violation of 21 U.S.C. § 846. The district court denied Johnson’s motion because Johnson was sentenced as a career offender under U.S.S.G. § 4B1.1, and therefore Amendment 706 did not change his Guidelines range.

On appeal, Johnson concedes that he was. sentenced as a career offender and that, per United States v. Moore, 541 F.3d 1323 (11th Cir.2008), cert. denied, McFadden v. United States, — U.S. -, 129 S.Ct. 965, 173 L.Ed.2d 156, and cert. denied, — U.S. -, 129 S.Ct. 1601, 173 L.Ed.2d 689 (2009), he was not eligible for § 3582 relief because his final sentencing range was based on U.S.S.G. § 4B1.1, not § 2D1.1. However, Johnson argues that the district court erred as a matter of law in order to seek further review on the issue.

“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). A district court may reduce a term of imprisonment in the case 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). Any reduction, however, must be “consistent with applicable policy statements issued by the Sentencing Commission.” Id. The applicable policy statements, found in § 1B1.10, state that a reduction of a term of imprisonment is not authorized if the retroactive amendment does not have the effect of lowering the defendant’s applicable Guideline range. U.S.S.G. § lB1.10(a)(2)(B).

The district court did not err in refusing to reduce Johnson’s sentence because Johnson was sentenced as a career offender pursuant to § 4B1.1. Moore, 541 F.3d at 1327 (holding that a defendant sentenced as a career offender pursuant to § 4B1.1 is not entitled to § 3582 relief because Amendments 706 and 713 did not lower the applicable guideline range for career offenders).

AFFIRMED.