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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-16079
Non-Argument Calendar
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D.C. Docket No. 5:01-cr-00069-CAR-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN WHITE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(October 23, 2013)
Before TJOFLAT, PRYOR, and FAY, Circuit Judges.
PER CURIAM:
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John White, proceeding through counsel, appeals the district court’s denial
of his motion for a sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2) and
Amendment 750. We affirm.
I.
White pled guilty to distribution of more than 50 grams of cocaine base
(“crack-cocaine”) and was sentenced for the offense in November 2004. The
presentence investigation report (“PSI”) calculated White’s base offense level
under U.S.S.G. § 2D1.1(c). However, because White was a career offender, his
guideline range was calculated pursuant to U.S.S.G. § 4B1.1. After receiving a
departure for substantial assistance, he was sentenced to 160 months of
imprisonment. In 2011, White filed a § 3582(c) motion based on Amendment 750
and the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372.
After the government responded, the district court determined White was not
eligible for a § 3582(c) reduction based on Amendment 750, because his sentence
was based on § 4B1.1, not § 2D1.1, which Amendment 750 amended. Further, the
FSA was not applicable because White was sentenced before the FSA’s effective
date. Thus, the court determined he was not entitled to a sentence reduction.
II.
On appeal, White argues he was entitled to a sentence reduction
notwithstanding his career offender status. Citing to Freeman v. United States, 564
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U.S. ___, 131 S. Ct. 2685, 180 L. Ed. 2d 519 (2011), he argues he was sentenced
based on § 2D1.1(c), which was amended by Amendment 750, because § 2D1.1(c)
remained a point of reference throughout the process of calculating his guideline
range and determining whether any departure or variance was warranted. White
argues we should not rely on our decision in United States v. Lawson, 686 F.3d
1317 (11th Cir.), cert. denied, 133 S. Ct. 568 (2012), in the instant case because
that decision relies unduly on Justice Sotomayor’s concurrence in Freeman, which
was not the controlling opinion in the case, does not specifically address career
offenders, and lacks any in-depth analysis of the FSA’s background. White further
argues that he was entitled to be resentenced under the FSA, which decreased the
mandatory minimums with respect to crack-cocaine offenses. In his reply brief,
White also argues that United States v. Berry, 701 F.3d 374 (11th Cir. 2012), and
United States v. Hippolyte, 712 F.3d 535 (11th Cir. 2013), petition for cert. filed,
No. 12-10828 (U.S. June 12, 2013), are distinguishable from his case.
We review de novo the district court’s legal conclusions about the scope of
its authority under § 3582(c)(2). Lawson, 686 F.3d at 1319. Section 3582(c)(2)
provides that a court may reduce a defendant’s sentence where the defendant is
sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission. § 3582(c)(2); U.S.S.G.
§ 1B1.10(a)(1).
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In United States v. Moore, we held that a career offender is not entitled to
§ 3582(c)(2) relief where a retroactive guideline amendment reduces his base
offense level, but does not alter the sentencing range upon which his sentence was
based. 541 F.3d 1323, 1330 (11th Cir. 2008). In Lawson, we rejected a career
offender’s argument that, in light of the Supreme Court’s decision in Freeman, the
holding of Moore was overruled, such that he was entitled to a sentence reduction
based on § 3582(c)(2) and Amendment 750, notwithstanding his sentence being
based on the career offender guideline. Lawson, 686 F.3d at 1319-21. In
Freeman, the question before the Supreme Court was whether defendants who
entered into Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreements were
eligible for § 3582(c)(2) relief. Freeman, 564 U.S. at ____, 131 S. Ct. at 2690.
We determined that neither the plurality opinion nor Justice Sotomayor’s
concurrence in Freeman addressed 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. Lawson, 686 F.3d at 1321. Thus, we
held Freeman did not overrule Moore’s holding that a career offender was not
entitled to § 3582(c)(2) relief where his guideline range was not lowered by a
retroactive amendment because Freeman was not “clearly on point” to the issue
that arose in Moore. Id. Accordingly, we held Lawson, a career offender, was not
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entitled to relief based on Amendment 750 and § 3582(c)(2), as his guideline range
based on § 4B1.1 was not reduced by Amendment 750. Id.
In Berry, we addressed the applicability of Amendment 750 and the FSA in
the context of a § 3582(c)(2) proceeding. 701 F.3d at 376-77. Berry was
convicted of a crack-cocaine offense and sentenced in 2002, and his initial
guideline range was 360 months to life imprisonment, which was based on his
status as a career offender under § 4B1.1(b), not on the drug quantity tables in
§ 2D1.1. Id. at 376. On appeal, we held that the district court did not have the
authority to grant Berry’s § 3582(c)(2) motion because Amendment 750 had no
effect on Berry’s initial guideline range of 360 months to life imprisonment or his
guideline sentence of life imprisonment. Id. at 377. In addition, we rejected
Berry’s argument that he was eligible for a § 3582(c)(2) reduction under the FSA,
determining the FSA was not an amendment to the Guidelines by the Sentencing
Commission, but rather a statutory change by Congress. Id. Thus, it did not serve
as a basis for a § 3582(c)(2) sentence reduction in Berry’s case. Id. Even
assuming that Berry could bring his FSA claim in a § 3582(c)(2) motion, we
continued, his claim still failed because he was convicted and sentenced in 2002
and the FSA did not apply retroactively to his 2002 sentences. Id. We pointed out
that the general savings clause in 1 U.S.C. § 109 states the repeal of a statute shall
not have the effect of releasing or extinguishing any penalty incurred under that
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statute unless the repealing act expressly so provides. Id. We then agreed with
“every other circuit to address the issue” that there was no evidence that Congress
intended the FSA to apply to defendants who had been sentenced before the
August 3, 2010, date of the FSA’s enactment. Id. Finally, we distinguished the
Supreme Court’s decision in Dorsey v. United States, 567 U.S. ___, 132 S. Ct.
2321, 183 L. Ed. 2d 250 (2012), noting that Dorsey did not suggest the FSA’s new
mandatory minimums should apply to defendants, like Berry, who were sentenced
before the FSA’s effective date. Id. at 377-78.
In Hippolyte, we rejected Hippolyte’s arguments that (1) Congress intended
for the FSA to apply to drug-crime sentence reductions under § 3582(c)(2) for the
same reasons articulated in Dorsey; and (2) it would be inconsistent to apply the
more lenient sentencing ranges of Amendment 750, but keep the harsh pre-FSA
mandatory minimums in a § 3582(c)(2) proceeding involving a defendant
sentenced before the FSA’s enactment. 712 F.3d at 539-40, 542. We determined
that Berry was indistinguishable from Hippolyte’s case, and thus, the FSA’s
reduced statutory penalties did not apply to his case. Id. at 542.
In the instant case, the district court correctly denied White’s § 3582(c)(2)
motion because his guideline range was not lowered by Amendment 750.
Amendment 750 reduced the base offense levels in § 2D1.1, not in § 4B1.1. See
U.S.S.G. App. C, Amend. 750; U.S.S.G. App. C, Amend. 748; see also Lawson,
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686 F.3d at 1321. White was initially assigned a base offense level under § 2D1.1,
but his total offense level and guideline range were based on § 4B1.1, not § 2D1.1,
because he was a career offender. Thus, Amendment 750 did not alter the
sentencing range upon which White’s sentence was based. See Lawson, 686 F.3d
at 1321. As Freeman did not abrogate our prior holding—that defendants
sentenced as career offenders, pursuant to § 4B1.1, were not entitled to
§ 3582(c)(2) sentence reductions where their guideline ranges were unaffected by a
retroactive amendment—the district court properly determined that § 3582(c)(2)
did not authorize a reduction in White’s sentence. Id. at 1320-21.
Although White argues that he is entitled to a § 3582(c)(2) sentence
reduction based on the FSA, Berry forecloses White’s argument. As we stated in
Berry, the FSA is not a guideline amendment, and thus, White is not eligible for a
§ 3582(c)(2) sentence reduction based on the FSA. See Berry, 701 F.3d at 376-77.
Here, White appears to argue that Berry is distinguishable because he is seeking to
reduce his sentence based both on Amendment 750 and the FSA. However, as
discussed above, Amendment 750 has no application here because it does not
lower White’s guideline range. Further, although White argues that the FSA
applies retroactively in a § 3582(c)(2) proceeding for the same reasons articulated
in Dorsey, we have previously rejected such an argument in Berry and Hippolyte,
as nothing in Dorsey suggests that the FSA’s new mandatory minimums should
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apply to defendants who were sentenced long before the FSA’s effective date. See
id. at 377-78; Hippolyte, 712 F.3d at 539-40, 542. Thus, the FSA does not apply to
White’s case, and he has not shown that he is entitled to a § 3582(c)(2) sentence
reduction because he has not shown that an amendment to the Guidelines has the
effect of reducing his sentence. Accordingly, the district court did not err in
denying White’s § 3582(c)(2) motion.
AFFIRMED.
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