United States v. Edward Venard Hightower

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16306 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 6, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 98-00918-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD VENARD HIGHTOWER,
a.k.a. Edwin,
a.k.a. Cedric,
a.k.a. E.Z.
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 6, 2009)
Before BIRCH, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Edward Venard Hightower, through counsel, appeals from the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion to modify his sentence, based
on Amendment 706 to the U.S. Sentencing Guidelines, which lowered the base
offense levels for crimes involving cocaine base (“crack cocaine”). On appeal,
Hightower argues that the district court erred in finding that it lacked authority
under § 3582(c)(2) to reduce his sentence due to the fact that he was sentenced as a
career offender, because 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,
__ S. Ct. __ (U.S. Mar. 9, 2009) (No. 08-8554), was wrongly decided under United
States v. Booker, 543 U.S. 220 (2005), and Kimbrough v. United States, 128 S. Ct.
558 (2007). After thorough review, we affirm.
“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 modify a term of imprisonment in the case of a
defendant who was sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing Commission. 18
U.S.C. § 3582(c)(2). Any reduction, however, must be “consistent with applicable
policy statements issued by the Sentencing Commission.” Id. The Sentencing
Commission has noted that a defendant is ineligible for a sentence reduction where
an “amendment does not have the effect of lowering [his] applicable guideline
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range because of the operation of another guideline or statutory provision.”
U.S.S.G. § 1B1.10, comment. (n.1(A)).
The district court did not err in denying Hightower’s § 3582(c)(2) motion
because he was sentenced as a career offender. See Moore, 541 F.3d at 1330(holding that a district court lacks authority under § 3582(c)(2) to reduce a
defendant’s sentence when the defendant was sentenced under U.S.S.G. § 4B1.1 as
a career offender). Additionally, Hightower’s Booker and Kimbrough arguments
are foreclosed by precedent. See United States v. Melvin, 556 F.3d 1190, 1192-93
(11th Cir. 2009), petition for cert. filed, (U.S. Feb. 10, 2009) (No. 08-8664)
(holding that Booker and Kimbrough do not apply at resentencing proceedings
under § 3582(c)(2)). Accordingly, we affirm.
AFFIRMED.
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