United States v. Servando Ferguson , 325 F. App'x 836 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12646 ELEVENTH CIRCUIT
APRIL 30, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 00-00005-CR-OC-10-GRJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SERVANDO FERGUSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 30, 2009)
Before BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Servando Ferguson, a federal prisoner convicted of crack cocaine offenses,
appeals the district court’s denial of his counseled 18 U.S.C. § 3582(c)(2) motion
for reduction of sentence based on Amendment 706 to U.S.S.G. § 2D1.1, which
lowered the base offense levels applicable to crack cocaine offenses.
Ferguson contends that he was not sentenced as a career offender pursuant to
U.S.S.G. § 4B1.1, but instead was sentenced pursuant to U.S.S.G. § 2D1.1, and, for
that reason United States v. Moore, 541 F.3d 1323 (11th Cir. 2008), cert. denied
sub nom. McFadden v. United States, 129 S. Ct. 965 (2009), is inapplicable and he
is entitled to § 3582 relief. To the contrary, Ferguson was sentenced as a career
offender pursuant to § 4B1.1, instead of based on the drug quantity in § 2D1.1.
The applicable base offense level under § 4B1.1 applied because it was greater
than the § 2D1.1 base offense level. See U.S.S.G. § 4B1.1(b) (stating that the base
offense level in § 4B1.1 applies as long as it is higher than the “offense level
otherwise applicable,” such as the levels under § 2D1.1). Because Ferguson was
sentenced based on the career offender guideline section, the base offense levels
under § 2D1.1 “played no role in the calculation of [the guideline] range[ ],” and
the lowering of the § 2D1.1 levels did not lower his guideline range, the Moore
decision applies. See Moore, 541 F.3d at 1327; see also U.S.S.G. § 1B1.10 cmt.
n.1(A) (stating that a reduction under § 3582(c)(2) is not authorized where “the
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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 or statutory provision”).
Ferguson also contends that United States v. Booker, 543 U.S. 220, 125 S.
Ct. 738 (2005), rendered the Guidelines advisory in the § 3582 context. That
argument is precluded by our decision in United States v. Melvin, 556 F.3d 1190
(11th Cir. 2009). Ferguson asks that we hold his case in abeyance pending the
resolution of the petition for hearing en banc in United States v. Argro, No. 08-
14591. We decline to do so because the filing of a petition for hearing en banc has
no effect on the precedential effect of any of our decisions.
AFFIRMED.
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