[DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                           U.S. COURT OF APPEALS
                                No. 10-15060                 ELEVENTH CIRCUIT
                            Non-Argument Calendar                APRIL 25, 2011
                          ________________________                JOHN LEY
                                                                   CLERK
                     D.C. Docket No. 0:07-cr-60032-ASG-1

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                      versus

MARCEL TOMLIN,

                                                         Defendant-Appellant.

                          ________________________

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

                                 (April 25, 2011)

Before CARNES, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:

      Marcel Tomlin appeals the district court’s denial of his motion for a reduced

sentence, pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706 to the
Sentencing Guidelines. The district court concluded that he was not entitled to

relief under § 3582(c)(2) on the ground that Amendment 706 did not lower the

applicable guideline range, because he was sentenced as a career offender under

U.S.S.G. § 4B1.1 and Amendment 706 did not affect his status as a career

offender. After careful review, we affirm.

      We review de novo a district court’s legal conclusions about the scope of its

authority under 18 U.S.C. § 3582(c)(2) and the Sentencing Guidelines. United

States v. Moore, 

, 1326 (11th Cir. 2008).

      Under § 3582(c)(2), a district court may modify a term of imprisonment

once it has been imposed:

      in the case of a defendant who has been sentenced to a term of
      imprisonment based on a sentencing range that has subsequently been
      lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o),
      upon motion of the defendant or the Director of the Bureau of
      Prisons, or on its own motion, the court may reduce the term of
      imprisonment, after considering the factors set forth in section
      3553(a) to the extent that they are applicable, if such a reduction is
      consistent with applicable policy statements issued by the Sentencing
      Commission.

18 U.S.C. 3582(c)(2). Amendment 706 retroactively lowered the sentencing range

applicable to crack cocaine offenses by amending 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.” 

. Thus, Amendment 706 may be

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the basis for § 3582(c)(2) relief when a defendant’s term of imprisonment was

based on the sentencing range determined in accordance with the offense level

calculations under § 2D1.1. But, if a defendant is sentenced as a career offender

under § 4B1.1(b), § 3582 relief is unavailable because Amendment 706 did not

lower the applicable guideline range for career offenders. 

.

        The record here shows that Tomlin was sentenced as a career offender. The

applicable sentencing range under § 4B1.1(b) was 188 to 235 months’

imprisonment, and the range under § 2D1.1 was 155 to 188 months’

imprisonment. Although the district court imposed a sentence of 170 months’

imprisonment—i.e., a sentence below the § 4B1.1(b) range and within the § 2D1.1

range—it explicitly clarified that Tomlin was sentenced as a career offender under

§ 4B1.1(b), with a downward variance based upon certain § 3553 factors.

        Since Tomlin’s sentence was not based on the sentencing range determined

in accordance with the offense level calculations under § 2D1.1, Amendment 706

had no effect on the applicable sentencing range, and consequently, he was

ineligible for relief under § 3582(c)(2). Thus, the district court properly denied his

§ 3582(c)(2) motion.

        AFFIRMED.

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