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United States v. Anthony Morales, 08-11702 (2009)

Court: Court of Appeals for the Eleventh Circuit Number: 08-11702 Visitors: 64
Filed: Sep. 17, 2009
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT SEPTEMBER 17, 2009 No. 08-11702 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 94-00285-CR-T-27TBM UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANTHONY MORALES, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Florida _ (September 17, 2009) Before EDMONDSON, BARKETT and PRYOR, Circuit Judges. PER CURIA
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                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                        SEPTEMBER 17, 2009
                            No. 08-11702                 THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________

                D. C. Docket No. 94-00285-CR-T-27TBM


UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

ANTHONY MORALES,

                                                        Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    _________________________

                          (September 17, 2009)

Before EDMONDSON, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:

       Anthony Morales, a pro se federal prisoner convicted of a crack cocaine

offense, appeals the denial of his motion for a reduced sentence, 18 U.S.C. §

3582(c)(2), based on Amendment 706 to the Sentencing Guidelines.1 The district

court denied the section 3582(c)(2) motion because Morales had been sentenced as

a career offender and an armed career criminal. No reversible error has been

shown; we affirm.

       On appeal, Morales argues that Amendment 706 applies to him because his

sentencing calculations began with the drug quantity table. He also argues that

United States v. Booker, 
125 S. Ct. 738
(2005), gives the court more discretion to

reduce his sentence under section 3582(c)(2). We review de novo the district

court’s legal conclusions about the scope of its authority in a section 3582(c)(2)

proceeding. 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).

       Here, the district court committed no error in denying Morales’s section

3582(c)(2) motion. Because Morales was sentenced based on the career-offender



       1
        Amendment 706 -- which became retroactive on 3 March 2008, U.S.S.G. App. C,
Amend. 713 (Supp. 1 May 2008) -- reduced by two the base offense levels in crack cocaine
sentences calculated pursuant to the drug quantity table, U.S.S.G. § 2D1.1(c).

                                              2
and armed career criminal offense levels instead of the offense level determined by

drug quantity, he was ineligible for a sentence reduction under Amendment 706.

See 
id. at 1330
(concluding that the district court had no authority to reduce the

sentence of a defendant who was sentenced as a career offender under U.S.S.G. §

4B1.1); United States v. Thomas, 
545 F.3d 1300
, 1302 (11th Cir. 2008)

(Amendment 706 had no effect on defendant’s sentencing range when he had been

sentenced as an armed career criminal, U.S.S.G. § 4B1.4).

      Morales’s other arguments in support of section 3582(c)(2) relief are

unavailing. Morales argues that the court could have granted him a downward

departure based on his consent to deportation upon release; but the court was not

permitted to reconsider guideline applications, except to the extent they were

changed by Amendment 706. See United States v. Bravo, 
203 F.3d 778
, 781 (11th

Cir. 2000) (explaining that a sentence reduction under section 3582(c)(2) is not a

de novo resentencing and “all original sentencing determinations remain

unchanged with the sole exception of the guideline range that has been amended

since the original sentencing”). And Booker provides no independent basis for

section 3582(c)(2) relief. See United States v. Moreno, 
421 F.3d 1217
, 1220 (11th

Cir. 2005) (explaining that Booker does not provide a basis for relief under section

3582(c)(2) because it “is a Supreme Court decision, not a retroactively applicable



                                           3
guideline amendment by the Sentencing Commission”).

     AFFIRMED.




                                      4

Source:  CourtListener

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