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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-16060
Non-Argument Calendar
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D.C. Docket No. 5:04-cr-00084-CAR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HOSEA M. ALLEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(March 10, 2014)
Before TJOFLAT, HULL and JORDAN, Circuit Judges.
PER CURIAM:
Hosea Allen appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2)
motion to reduce his sentence of 262 months’ imprisonment. He contends that that
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district court erred by declining to retroactively apply Amendment 750 to the
United States Sentencing Guidelines and the reduced statutory penalties of the Fair
Sentencing Act of 2010 (“FSA”) to reduce his sentence. For the reasons set forth
below, we affirm the district court's denial of Allen's § 3582(c)(2) motion.
I.
In February 2005, the government charged Allen with distributing cocaine
base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count One), and distributing
in excess of five grams of cocaine base, in violation of § 841(a)(1), (b)(1)(B)(iii)
(Count Two). After a two-day trial, a jury found Allen guilty of both charges. At
the July 20, 2005, sentencing hearing, the district court held Allen responsible for
26.1 grams of cocaine base and initially calculated an offense level of 28 under
U.S.S.G. § 2D1.1(c). Allen, however, was a career offender, which, per the 2004
career offender table, produced a total offense level of 34 in light of the 40-year
statutory maximum penalty to which he was subject. U.S.S.G. § 4B1.1(2004).
When combined with Allen’s criminal history category of VI, this produced a
Guideline sentence range of 262 to 327 months’ imprisonment. The district court
ultimately imposed a sentence of 240 months’ imprisonment for Count One and
262 months’ imprisonment for Count Two to run concurrently, for a total
imprisonment term of 262 months. Allen moved the district court twice to reduce
his sentence, but the district court denied both motions.
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On appeal, Allen argues that he is eligible for a sentence reduction under §
3582(c)(2) notwithstanding his status as a career offender, because his sentence
range was “based upon” § 2D1.1, which includes offense levels for crack-cocaine
drug quantities that were lowered by Amendment 750. Allen also argues that he is
entitled to a sentence reduction under the FSA’s reduced statutory mandatory
minimum penalties for crack-cocaine offenses.
II.
We review de novo the district court’s conclusions about the scope of its
legal authority under 18 U.S.C. § 3582(c)(2). United States v. Lawson, 686 F.3d
1317, 1319 (11th Cir. 2012), cert. denied, ––– U.S. ––––, 133 S.Ct. 568, 184
L.Ed.2d 371 (2012). Section 3582(c)(2) of Title 18 of the United States Code
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. 18 U.S.C. §
3582(c)(2); U.S.S.G. § 1B1.10(a)(1). When determining whether a reduction is
warranted, a court should first determine the Guideline sentence range that would
have applied had the relevant amendment been in effect at the time of the
defendant’s sentencing. See United States v. Vautier, 144 F.3d 756, 759–60 (11th
Cir. 1998); U.S.S.G. § 1B1.10(b)(1). If the relevant amendment does not have the
effect of lowering the defendant’s applicable Guideline sentencing range, a
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sentence reduction is inconsistent with the Guideline’s policy statement, and is,
therefore, not authorized by § 3582(c)(2). U.S.S.G. § 1B1.10(a)(2)(B). In United
States v. Moore, we held that a career offender is not entitled to a reduction of his
sentence under § 3582(c)(2) where a retroactive Guideline amendment reduces his
base offense level but does not alter the Guideline sentence range upon which his
sentence was based. 541 F.3d 1323, 1330 (11th Cir.2008).1
Allen, like the defendants in Moore, was sentenced as a career offender. His
Guideline sentence range was therefore based upon and determined by § 4B1.1,
not § 2D1.1. Although the Sentencing Commission lowered the offense levels in
U.S.S.G. § 2D1.1(c) for crack-cocaine drug quantities, it did not lower the sentence
range for career offenders under U.S.S.G. § 4B1.1, which is what set Allen’s
Guideline sentence range. Application of Amendment 750 would therefore not
lower his applicable Guideline sentence range.
Allen, however, argues that his sentence was based upon § 2D1.1 and thus
he is eligible for a reduction under § 3582(c)(2). He contends that the Supreme
Court's plurality opinion in Freeman v. United States, 564 U.S. ––––, 131 S.Ct.
2685, 180 L.Ed.2d 519 (2011), overruled our Moore decision and supports his
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The defendants in Moore were eligible to have their base offense levels lowered by the
retroactively applied Amendment 706, but because they were sentenced as career offenders
under U.S.S.G. § 4B1.1, their Guideline sentence range would remain unaffected, thus they were
ineligible for a sentence reduction under § 3582(c)(2).
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contention. Unfortunately for Allen, we have already rejected this argument in
United States v. Lawson, 686 F.3d 1317, 1319 (11th Cir. 2012).
In Lawson, the defendant, like Allen, appealed the district court’s denial of
his request for a sentence reduction under § 3582(c)(2), arguing that
notwithstanding being sentenced as a career offender under § 4B1.1, based on the
Supreme Court's decision in Freeman, he was entitled to a sentence reduction
pursuant to Amendment 750 because his sentence was based on § 2D1.1. 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 a § 3582(c)(2) sentence reduction. 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 [G]uideline section, but who were ultimately assigned a total offense level and
[G]uideline sentence range under § 4B1.1.” Lawson, 686 F.3d at 1321. We
therefore concluded that Freeman was not “clearly on point” to the issue that arose
in Moore and thus did not overrule Moore's holding that a career offender was not
entitled to § 3582(c)(2) relief where his Guideline sentence range was not lowered
by a retroactive amendment. Id. (citing United States v. Kaley, 579 F.3d 1246,
1255 for the proposition that to overrule a prior opinion of the court, the Supreme
Court decision “must be clearly on point”). Accordingly, we held that Lawson, a
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career offender, was not entitled to relief based on Amendment 750 and §
3582(c)(2), as his Guideline sentence range, which was based on § 4B 1.1, was not
reduced by Amendment 750. Id.
Based on our decision in Moore and Lawson, Allen is not entitled to a §
3582(c)(2) sentence reduction based on Amendment 750 because Amendment 750
only addressed his base offense level under § 2D1.1, without doing anything to
lower his Guideline sentence range as determined by § 4B1.1.
Allen also argues that he is eligible for a § 3582(c)(2) reduction from his
minimum penalty of 40-years imprisonment to a minimum penalty of 20-years
imprisonment, based on the FSA, which became effective on August 3, 2010. The
FSA lowered the statutory mandatory minimum penalties for crack cocaine
offenses in 21 U.S.C. § 841(b). See Fair Sentencing Act of 2010, Pub. L. No. 111–
220 § 2(a), 124 Stat. 2372 (2010). According to Allen, Congress intended the FSA
to apply to all sentencing and sentencing-reduction proceedings after the FSA’s
effective date and that the Supreme Court’s justifications in Dorsey v. United
States, 567 U.S. ––––, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012) counsel that the
FSA should apply in § 3582(c)(2) proceedings.
We addressed the FSA’s applicability in the context of § 3582(c)(2)
proceedings in United States v. Berry, 701 F.3d 374 (11th Cir. 2012). Berry was
convicted of a crack cocaine offense and sentenced in 2002, and his initial
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Guideline range was 360 months to life imprisonment, which was based on his
status as a career offender under § 4B 1.1(b), not on the drug quantity tables in §
2D1 .1(c). Id. at 376.
In resolving Berry’s appeal, we noted that the FSA is not a Guideline
amendment but a statutory change by Congress, thus it could not serve as a basis
for a § 3582(c)(2) sentence reduction in Berry's case. Moreover, even assuming
that Berry could bring his FSA claim in a § 3582(c)(2) proceeding, we concluded
that his claim still failed because he was convicted and sentenced in 2002 and the
FSA did not apply retroactively to his 2002 sentence. Id. We pointed out 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.
We also noted that the Supreme Court’s decision in Dorsey did not suggest that the
FSA's new mandatory minimums should apply to defendants, like Berry, who were
sentenced before the FSA’s effective date. Id. at 378 (“Dorsey carefully confined
its application of FSA to pre-Act offenders who were sentenced after the Act’s
effective date”); see also United States v. Hippolyte, 712 F.3d 535, 542 (11th Cir.
2013) (reaffirming the conclusion in Berry that Dorsey did not indicate that the
FSA’s new mandatory minimums should apply to defendants sentenced before the
FSA’s effective date).
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Berry supports the conclusion that the district court did not have the
authority to grant Allen’s § 3582(c)(2) motion. The FSA is not an amendment to
the Guidelines by the Sentencing Commission and, thus it cannot serve as a basis
for a § 3582(c)(2) sentence reduction in Allen's case. See Berry, 701 F.3d at 377.
And even assuming that Allen could raise his FSA claim in a § 3582(c)(2) motion,
his claim fails because he was sentenced in 2005, before the August 3, 2010,
effective date of the FSA, therefore he cannot benefit from the FSA's lower
statutory mandatory minimum provisions. See Hippolyte, 712 F.3d at 542.
Contrary to Allen's assertion on appeal, Dorsey did not suggest that the FSA's new
statutory penalties should apply to defendants who were sentenced before the
FSA's effective date. See Berry, 701 F.3d at 377–78; Hippolyte, 712 F.3d at 542.
In sum, the district court was not authorized to reduce Allen’s sentence
under § 3582(c)(2) because he was sentenced as a career offender. Likewise, the
FSA does not authorize a sentence reduction under § 3582(c)(2), and, in any case,
it does not retroactively apply to defendants who, like Allen, were sentenced prior
to its enactment.
Accordingly, after a careful and thorough review of the record and the
parties’ briefs, we affirm.
AFFIRMED.
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