United States v. Patrick Eldira

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16382 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 12, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 98-00918-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICK ELDIRA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 12, 2009)
Before BIRCH, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Patrick Eldira, through counsel, appeals from the district court’s denial of his
motion for a sentence reduction under 18 U.S.C. § 3582(c)(2), based on
Amendment 706 to the U.S. Sentencing Guidelines, which amended the base
offense levels in U.S.S.G. § 2D1.1(c) applicable to crack cocaine offenses. On
appeal, Eldira argues that he was eligible for a sentence reduction because, even
though he was sentenced a career offender, the controlling precedent, 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. After careful 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 not modify a term of imprisonment unless a defendant
was sentenced based on a sentencing range that has “subsequently been lowered”
by the Sentencing Commission. See 18 U.S.C. §§ 3582(c)(1)(B), (c)(2).
Amendment 706, which has been made retroactive, amends the Drug Quantity
Table in § 2D1.1(c) “to provide a two-level reduction in base offense levels for
crack cocaine offenses.” Moore, 541 F.3d at 1325. However, if a defendant is a
career offender, his base offense level is determined under the career offender
guideline in § 4B1.1(b), and not the drug quantity guideline in § 2D1.1(c). 541
F.3d at 1327-28.
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For this reason, we held in Moore that Amendment 706 has no effect on the
applicable guideline range for defendants who are sentenced under the career
offender guideline. Id. at 1330. Moreover, we have held that Booker does not, by
itself, permit a district court to impose a § 3582(c)(2) sentence reduction. United
States v. Jones, 548 F.3d 1366, 1369 (11th Cir. 2008). We are bound to follow our
prior binding precedent “unless and until it is overruled by this [C]ourt en banc or
by the Supreme Court.” United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th
Cir. 2008) (quotations omitted).
Eldira’s argument that Moore was wrongly decided is meritless because
Moore has not been overruled by either this Court sitting en banc or the Supreme
Court, and, therefore, we remain bound by the Moore decision. See Vega-Castillo,
540 F.3d at 1236. In addition, because Eldira is ineligible for a § 3582 sentence
reduction, Booker cannot be applied, on its own, to permit such a reduction to take
place. See Jones, 548 F.3d at 1369. Accordingly, we affirm.
AFFIRMED.
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