Case: 12-10238    Date Filed: 07/08/2013   Page: 1 of 4


                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-10238
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 9:03-cr-80117-DTKH-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

GARY MOORE,
a.k.a. Nino,

                                                              Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                   (July 8, 2013)

Before WILSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Gary Moore appeals the district court’s denial of his motion to reduce his

sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 750 to the United

States Sentencing Guidelines (U.S.S.G.). The district court held that it lacked
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authority to reduce Moore’s sentence because Moore was originally sentenced as a

career offender and, therefore, Amendment 750 did not lower his guideline range.

On appeal, Moore acknowledges that the district court’s decision is correct under

United States v. Moore, 

(11th Cir. 2008), this Court’s decision in

his earlier appeal of the district court’s denial of his motion to reduce his sentence

based on 18 U.S.C. § 3582(c) and Amendment 706 to the Sentencing Guidelines.

He argues, however, that “there is a question as to whether the Moore decision has

been abrogated in part by the recent amendments to the Sentencing Guidelines.”

      “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.”

(quotation marks omitted). “We review de novo

questions of statutory interpretation.” 

      The district court’s conclusion was correct under Moore. As explained by

this Court in Moore:

       In Moore’s case, the probation officer assigned Moore a total
       offense level of 34 and a criminal history category of VI following
       the application of the career offender guideline. These assignments
       yielded a guideline range of 262 to 327 months’ imprisonment. The
       government filed a downward departure motion pursuant to § 5K1.1
       and 18 U.S.C. § 3553(a) based on Moore’s substantial assistance,
       and the court imposed a sentence of 132 months’ imprisonment. . . .
       [T]he court indicated that the departure was predicated on the
       government’s § 5K1.1 motion.

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      In that case we concluded that Moore was sentenced based on the career

offender guidelines, despite receiving a below guideline sentence due to the

substantial assistance downward departure. 

Amendment

706 reduced Moore’s base offense level, it did not change “the sentencing range

upon which his . . . sentence was based” because he was sentenced as a career

offender and, therefore, “§ 3582(c)(2) [did] not authorize a reduction in sentence.”

Amendment 750 also lowered base offense levels

under U.S.S.G. § 2D1.1, but did not change the career-offender guideline. See

United States v. Lawson, 

, 1319 (11th Cir. 2012). Thus, because

Moore was sentenced as a career offender and his career-offender guideline range

has not changed, § 3582(c)(2) does not authorize a reduction of his sentence. See

.

      Moore argues in this appeal that Moore has, at least in part, been abrogated

by a recent amendment to § 1B1.10 of the Sentencing Guidelines. Moore relies on

the following language:

       Exception for Substantial Assistance.—If the term of imprisonment
       imposed was less than the term of imprisonment provided by the
       guideline range applicable to the defendant at the time of sentencing
       pursuant to a government motion to reflect the defendant’s
       substantial assistance to authorities, a reduction comparably less
       than the amended guideline range determined under subdivision (1)
       [of U.S.S.G. § 1B1.10(b)] may be appropriate.


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United States Sentencing Guidelines § 1B1.10(b)(2) (Nov. 2011). Moore argues

that this provision “suggest[s] that a defendant whose sentence was reduced

‘pursuant to a government motion to reflect the defendant’s substantial assistance

to authorities’ would not be imprisoned ‘based on’ the career offender guidelines

and would, thus, be eligible for relief under § 3582(c)(2).”

      However, Moore’s argument is contrary to the plain language of that

provision and the Sentencing Commission’s reason for this change, to which he

also cites. See U.S.S.G. § 1B1.10(b)(2); U.S.S.G. App. C, amend. 759, Reason for

Amendment. The exception outlined in U.S.S.G. § 1B1.10(b)(2) allows

defendants who originally received a sentence below the guideline range due to a

substantial assistance reduction to receive a similar reduction to their “amended

guideline range.” U.S.S.G. § 1B1.10(b)(2); see also U.S.S.G. App. C, amend. 759,

Reason for Amendment (discussing its application “when the guideline range has

been reduced and made available for retroactive application under section

3582(c)(2)”). Here, Moore’s guideline range has not changed. See 

; 

. Therefore, the fact that Moore received a

reduction for substantial assistance has no bearing on our analysis. The district

court did not err in determining that it was not authorized to reduce Moore’s

sentence pursuant to Moore.

      AFFIRMED.


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