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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-13442
Non-Argument Calendar
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D. C. Docket No. 3:03-cr-00119-TJC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGETT L. WILCOX,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(November 20, 2013)
Before PRYOR, MARTIN, and HILL, Circuit Judges.
PER CURIAM:
Rogett Wilcox 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 to the
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Sentencing Guidelines. The district court denied Wilcox’s motion because it found
that he was not eligible for a reduction in sentence as he was sentenced as a career
offender. The parties agree that that the sentencing court found Wilcox to be a
career offender pursuant to U.S.S.G. § 4B1.1, and that his resulting guideline range
after application of § 4B1.1 was 188 to 235 months.
On appeal, Wilcox argues that Freeman v. United States, 564 U.S. ___, 131
S.Ct. 2685, 180 L.Ed.2d 519 (2011), undermined our decision in United States v.
Moore, 541 F.3d 1323 (11th Cir. 2008), to the point of abrogation by defining the
phrase “based on” more broadly than Moore did, and that, pursuant to Freeman,
his sentence was at least in part “based on” the crack cocaine guidelines, which
were used as a starting point for calculating his guideline range, and thus, he was
eligible for a sentence reduction under § 3582(c)(2). Wilcox acknowledges that, in
United States v. Lawson, 686 F.3d 1317, 1321 (11th Cir. 2012), we held that
Freeman did not undermine Moore, and states that he is raising this issue to
preserve it for further review. The government has responded with a “Motion for
Summary Affirmance and for Stay of the Briefing Schedule.”
Summary disposition is appropriate either where time is of the essence, such
as “situations where important public policy issues are involved or those where
rights delayed are rights denied,” or where “the position of one of the parties is
clearly right as a matter of law so that there can be no substantial question as to the
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outcome of the case, or where, as is more frequently the case, the appeal is
frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969);
see United States v. Martinez, 407 F.3d 1170, 1173-74 (11th Cir. 2005) (construing
the defendant’s “unconventional” motion as a motion for summary reversal,
granting the motion, vacating the defendant’s sentence, and remanding the case for
resentencing where the district court had committed plain error by treating the
Sentencing Guidelines as mandatory).
We review de novo the district court’s legal conclusions regarding the scope
of its authority under § 3582(c)(2). Lawson, 686 F.3d at 1319. We are bound by
the opinion of a prior panel unless the Supreme Court or this Court sitting en banc
overrules that opinion. Id.
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). The Sentencing Commission has noted, however, that a
defendant is ineligible for a sentence reduction where an amendment “does not
have the effect of lowering [his] applicable guideline range because of the
operation of another guideline or statutory provision.” U.S.S.G. § 1B1.10,
comment. (n.1(A)). The Guidelines explain that the amendment relied upon for §
3582(c)(2) relief must lower the “applicable guideline range,” which is “the
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guideline range that corresponds to the offense level and criminal history category
determined pursuant to [U.S.S.G.] § 1B1.1(a), which is determined before
consideration of any departure provision in the Guidelines Manual or any
variance.” Id.
Amendment 750 retroactively lowered the sentencing range applicable to
crack cocaine offenses by revising the crack cocaine quantity tables listed in §
2D1.1(c). U.S.S.G. App. C, amend. 750 (2011). Amendment 750 did not make
any changes to § 4B1.1, the career-offender guideline provision. See id.
When a defendant is sentenced as a career offender, his base offense level is
determined under § 4B1.1, not under § 2D1.1 based on his attributed drug
quantities. U.S.S.G. § 4B1.1; Moore, 541 F.3d at 1327. In Moore, we held that
Amendment 706, which reduced the base offense level for crack cocaine offenses,
was inapplicable to the sentences of four defendants who had been sentenced under
§ 4B1.1 as career offenders. 541 F.3d at 1327-30. The defendants’ sentences were
based on the applicable guideline ranges for career offenders, and the defendants’
otherwise applicable base offense levels under § 2D1.1 played no role in the
calculation of those ranges. Id. at 1330.
In Freeman, a four-justice plurality of the Supreme Court ruled that
§ 3582(c)(2) relief is available to a defendant who entered into a Fed.R.Crim.P.
11(c)(1)(C) plea agreement that includes an agreed-upon sentence that is expressly
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based on a guideline range that has been subsequently lowered by the Sentencing
Commission. Freeman, 564 U.S. at ___, 131 S.Ct. at 2690. In her concurring
opinion, Justice Sotomayor stated that sentences imposed pursuant to a
Rule 11(c)(1)(C) plea agreement are “based on” the plea agreement itself and not
the applicable guideline range. Id. at ___, 131 S.Ct. at 2696 (Sotomayor, J.,
concurring in the judgment). Nonetheless, where a plea agreement expressly
applied a particular guideline range, Justice Sotomayor agreed that the plea
agreement was based on that guideline range. Id. at ___, 131 S.Ct. at 2697
(Sotomayor, J., concurring in the judgment). If that guideline range is later
lowered by the Sentencing Commission, the defendant would be eligible to seek §
3582(c)(2) relief. Id.
In Lawson, we held that, after Freeman, Moore remains binding precedent in
this Circuit. Lawson, 686 F.3d at 1321. We explained that, in Freeman, neither
the plurality nor Justice Sotomayor “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.” Id. 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. Therefore, a defendant who was
convicted of a crack cocaine offense, but sentenced as a career offender under
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§ 4B1.1, was still not eligible for a § 3582(c)(2) reduction under Amendment 750.
Id.
Here, the district court properly denied Wilcox’s § 3582(c)(2) motion
because, as a career offender, Amendment 750 did not have the effect of lowering
his guideline range. Contrary to his arguments on appeal, Wilcox’s guideline
range was “based on” the career-offender guideline in § 4B1.1, not the
drug-quantity guidelines in § 2D1.1 that were affected by Amendment 750. As
Wilcox concedes, his argument that the Supreme Court’s decision in Freeman
abrogated our decision in Moore is explicitly foreclosed by our decision in
Lawson. We are bound by our opinion in Lawson because that opinion has not
been overruled by the Supreme Court or this Court sitting en banc.
Accordingly, the government’s motion for summary affirmance is
GRANTED, the judgment of the district court is AFFIRMED, and the
government’s motion to stay the briefing schedule is DENIED as moot.
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