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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12673
Non-Argument Calendar
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D.C. Docket No. 8:03-cr-00171-EAK-EAJ-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROMAINE JEROME COFFIE,
Defendant-Appellant.
________________________
No. 12-13382
Non-Argument Calendar
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D.C. Docket No. 3:06-cr-00312-VMC-TEM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
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versus
CARLOUS GRISSETT,
Defendant-Appellant.
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No. 12-13664
Non-Argument Calendar
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D.C. Docket No. 6:08-cr-00273-MSS-GJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVIN CLEVE HAZLEY,
a.k.a. Fudge,
Defendant-Appellant.
________________________
No. 12-14036
Non-Argument Calendar
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D.C. Docket No. 3:03-cr-00348-TJC-MCR-1
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WAYNE ANTHONY MOORE,
Defendant-Appellant.
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No. 12-14848
Non-Argument Calendar
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D.C. Docket No. 8:06-cr-00443-RAL-MAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH L. STRICKLAND,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
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(August 15, 2013)
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Before TJOFLAT, MARCUS, and JORDAN, Circuit Judges.
PER CURIAM:
Each of these consolidated appeals challenges the District Court’s denial of
the defendant’s motion for a sentence reduction, pursuant to 18 U.S.C.
§ 3582(c)(2). The District Court denied the defendant’s motion on the ground that
he was not eligible for a sentence reduction because he was sentenced as a career
offender, despite being sentenced below the applicable Guidelines sentence range
for career offenders due to downward variances or departures. Each defendant
argues that the court erred in denying his § 3582(c)(2) motion because, after the
Supreme Court’s decision in Freeman v. United States, 564 U.S. —, 131 S.Ct.
2685, 180 L.Ed.2d 519 (2011), a career offender who received a departure or
variance and was sentenced below the career offender sentence range was eligible
for a § 3582(c)(2) sentence reduction under Amendment 750 to the Sentencing
Guidelines.
A district court may only reduce a defendant’s term of imprisonment under
§ 3582(c)(2) if his sentence was based upon a sentence range the Sentencing
Commission subsequently lowered and if the reduction is consistent with the
Sentencing Commission’s applicable policy statements. 18 U.S.C. § 3582(c)(2).
A reduction is not consistent with those policy statements if, due to the operation
of another guideline provision, it does not have the effect of lowering the
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defendant’s sentence range. U.S.S.G. § 1B1.10(a)(2)(B); U.S.S.G. § 1B1.10,
comment. (n.1(A)). The defendant’s “applicable guideline range” is the guideline
range that was in effect before any departures or variances were applied. U.S.S.G.
§ 1B1.10, comment. (n.1(A)). The application of § 1B1.10 does not violate the Ex
Post Facto Clause so long as the effect of the post-conduct Guidelines amendment
does not increase the defendant’s punishment beyond what it would have been
without the amendment. United States v. Colon, 707 F.3d 1255, 1258-59 (11th
Cir. 2013).
Amendment 750 reduced the offense levels associated with various amounts
of crack cocaine found in the Drug Quantity Table in U.S.S.G. § 2D1.1(c).
U.S.S.G. App. C, Amend. 750, Pt. A, cross referencing U.S.S.G. App. C, Amend.
748 (2011). Amendment 750 did not make any changes to U.S.S.G. § 4B1.1, the
career offender guideline. See U.S.S.G. App. C, Amend. 750.
When a defendant is sentenced as a career offender, his base offense level is
determined under § 4B1.1, not under the Drug Quantity Table set forth in
§ 2D1.1(c). U.S.S.G. § 4B1.1; United States v. Moore, 541 F.3d 1323, 1327 (11th
Cir. 2008). In Moore, we faced the question of whether defendants who were
sentenced as career offenders under § 4B1.1 were eligible for § 3582(c)(2) relief in
light of Amendment 706, which, like Amendment 750, lowered the § 2D1.1(c)
base offense levels for certain quantities of crack cocaine. 541 F.3d at 1325. We
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held that the defendants did not qualify for § 3582(c)(2) relief because Amendment
706 had no effect on their Guidelines sentence ranges, which were calculated under
§ 4B1.1. Id. at 1327-28, 1330. Further, where the court granted a downward
departure based on one defendant’s substantial assistance, there was no basis to
conclude that Amendment 706 lowered the defendant’s sentence range. Id. at
1330.
In Freeman, the Supreme Court considered whether a defendant could be
eligible for a sentence reduction where he entered into a Fed. R. Crim. P.
11(c)(1)(C) plea agreement that included a recommended sentence or guideline
sentence range. Freeman, 564 U.S. at —, 131 S.Ct. at 2690. In United States v.
Lawson, 686 F.3d 1317, 1321 (11th Cir. 2012), cert. denied, 133 S.Ct. 568 (2012),
we specifically addressed Freeman’s impact on Moore and held that Moore
remained binding precedent. We concluded that Freeman was not “clearly on
point” as to the issue addressed in Moore regarding the eligibility of career
offenders for § 3582(c)(2) relief based on the retroactive lowering of crack cocaine
base offense levels. Id. (internal quotation marks omitted). Specifically, Freeman
did not address “defendants who were assigned a base offense level under one
guideline section, but who were ultimately assigned a total offense level and
guideline range under § 4B1.1.” Id. Thus, the offense level and guideline sentence
range for career offenders were not lowered by Amendment 750. Id.
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Based on our precedent, the District Court did not err in denying the
defendants’ § 3582(c)(2) motions. The defendants’ total offense levels and
Guidelines sentence ranges were not based on the drug quantity offense levels in
§ 2D1.1, but instead were based on the career offender offense levels in § 4B1.1.
Because the sentence ranges were based on the career offender guidelines, not on
the drug quantity guidelines, Amendment 750 did not lower the sentencing ranges
upon which the defendants’ sentences were based. See Lawson, 686 F.3d at 1321;
Moore, 541 F.3d at 1327-30.
The defendants’ argument that the Supreme Court’s decision in Freeman
abrogated our decision in Moore is explicitly foreclosed by our decision in
Lawson. See Lawson, 686 F.3d at 1321. Moreover, under U.S.S.G. § 1B1.10 and
its commentary, a reduction is only authorized where an amendment has the effect
of lowering the applicable Guidelines sentence range, which is determined before
any departure or variance. U.S.S.G. § 1B1.10(a)(2)(B); U.S.S.G. § 1B1.10,
comment. (n.1(A)). Thus, the defendants applicable sentence ranges for the
purpose of determining their eligibility for a sentence reduction are the ranges
produced by applying the career offender sentence range without regard to any
downward departure or variance, and those ranges were not lowered by
Amendment 750.
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Finally, the defendants’ arguments regarding the definition of “applicable
guideline range” in the 2011 guidelines commentary are also unavailing. Section
3582(c)(2) explicitly incorporates applicable policy statements issued by the
Sentencing Commission, and we have previously rejected the argument that the
amendments to § 1B1.10 violated the Ex Post Facto Clause. See 18 U.S.C.
§ 3582(c)(2); Colon, 707 F.3d at 1258-59. Accordingly, the district court did not
err in denying the defendants’ motions for a sentence reduction because they were
sentenced as career offenders, and we affirm.
AFFIRMED.
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