United States v. Michael Ched Reed , 338 F. App'x 851 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13585 ELEVENTH CIRCUIT
JULY 22, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 03-00309-CR-T-26-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL CHED REED,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 22, 2009)
Before BARKETT, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Michael Ched Reed appeals the district court’s denial of his motion for a
reduction of sentence, pursuant to 18 U.S.C. § 3582(c)(2). Reed’s § 3582(c)(2)
motion was based on Amendment 706 to the Guidelines, which reduced base
offense levels applicable to crack cocaine. On appeal, Reed argues that he was not
sentenced as a career offender because the district court found that Reed’s career
offender criminal history category of VI overrepresented his prior criminal
conduct, and, therefore, it departed downward, pursuant to U.S.S.G. § 4A1.3, to a
criminal history category of IV. Reed attempts to distinguish our decision in
United States v. Moore, 541 F.3d 1323 (11th Cir. 2008), cert. denied, McFadden v.
United States, 129 S.Ct. 965 (2009), and cert. denied, (U.S. Mar. 9, 2009) (No.
08-8554), by arguing that none of the career offender defendants in Moore had
received a downward departure under U.S.S.G. § 4A1.3.
“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 not modify a term of imprisonment
unless a defendant was sentenced based on a sentencing range that has
“subsequently been lowered” by the Sentencing Commission. See 18 U.S.C.
§§ 3582(c)(1)(B), (c)(2). Amendment 706, which has been made retroactive,
amends the Drug Quantity Table in U.S.S.G. § 2D1.1(c) “to provide a two-level
reduction in base offense levels for crack cocaine offenses.” Moore, 541 F.3d at
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1325. However, if a defendant is a career offender, his base offense level is
determined under the career offender guideline in U.S.S.G. § 4B1.1(b) and not the
drug quantity guideline in § 2D1.1(c).
Upon review of the record and the parties’ briefs, we discern no reversible
error. A defendant is only entitled to a § 3582(c)(2) sentence reduction if an
amendment actually reduces his applicable guideline range. See Moore, 541 F.3d
at 1327-28. In this case, Amendment 706 did not reduce Reed’s applicable
guideline range because his final offense level was based on the career offender
provisions of U.S.S.G. § 4B1.1 and not the § 2D1.1 table that Amendment 706
changed. Therefore, because Reed’s applicable guideline range remained
unaffected by Amendment 706, he was not entitled to a sentence reduction under
§ 3582(c)(2). Accordingly, we hereby affirm the district court’s decision.
AFFIRMED.
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