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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-16098
Non-Argument Calendar
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D.C. Docket No. 4:00-cr-00033-HL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAYMOND PRESCOTT,
a.k.a. Ram,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(November 25, 2013)
Before PRYOR, ANDERSON, and DUBINA, Circuit Judges.
PER CURIAM:
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Raymond Prescott appeals the district court’s denial of his motion to modify
his term of imprisonment, pursuant to 18 U.S.C. § 3582(c)(2). After careful
review, we affirm.
Prescott argues that he is entitled to a sentence reduction notwithstanding his
status as a career offender, and that he should be resentenced based on the lowered
mandatory minimum and statutory maximum sentences under the Fair Sentencing
Act of 2010 (“FSA”). Citing to Freeman v. United States, 564 U.S. __, 131 S. Ct.
2685 (2011), he argues that his sentence was based on U.S.S.G. § 2D1.1(c), which
was amended by Amendment 750. Prescott argues that we should not rely on our
decision in United States v. Lawson, 686 F.3d 1317 (11th Cir.), cert. denied, __
U.S. __, 133 S. Ct. 568 (2012), in the instant case because it relies unduly on
Justice Sotomayor’s concurrence in Freeman, does not specifically address career
offenders, and lacks any in-depth analysis of the FSA’s background. Prescott
further argues that he was entitled to be resentenced under the FSA’s reduced
statutory penalties for crack-cocaine offenses. In his reply brief, Prescott 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), 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
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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); U.S.S.G. § 1B1.10(a)(1).
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, despite 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. 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, 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 it was not “clearly on point” to the
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issue that arose in Moore. Id. (quotation omitted). Accordingly, we held that
Lawson, a career offender, was not 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 that 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, his
claim still failed because he was convicted and sentenced in 2002 and the FSA did
not apply retroactively to his 2002 sentence. Id.
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In Hippolyte, we rejected the defendant’s arguments (1) that Congress
intended for the FSA to apply to drug-crime sentence reductions under §
3582(c)(2) and (2) that 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. Id. at 542.
Here, Prescott was not eligible for a reduced sentence under Amendment
750 because he was sentenced as a career offender under § 4B1.1. See Moore, 541
F.3d at 1330. Amendment 750, which only amended § 2D1.1, did not operate to
lower Prescott’s Guidelines range of 262 to 327 months’ imprisonment.
Regardless of the effect of Amendment 750, as a career offender, Prescott
remained subject to a total offense level of 34 in light of his statutory maximum
sentence of life imprisonment. See 21 U.S.C. § 841(b)(1)(A)(iii) (2000); U.S.S.G.
§ 4B1.1. The asserted reduction in Prescott’s Guidelines range was wrought solely
by the FSA, which is not a Guidelines amendment and, therefore, cannot serve as
the basis for a sentence reduction. See Berry, 701 F.3d at 377. Moreover, Prescott
cannot benefit from the FSA because he was sentenced prior to its enactment. See
Pub. L. No. 111-220, 124 Stat. 2372; Berry, 701 F.3d at 377–78.
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The FSA does not apply to Prescott’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 Prescott’s § 3582(c)(2) motion.
AFFIRMED.
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