[DO NOT PUBLISH]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, 541 F.3d 1323, 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.” Moore, 541 F.3d at 1325. 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. Moore, 541 F.3d at
1327.
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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