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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-16106
Non-Argument Calendar
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D. C. Docket No. 0:05-cr-60174-JIC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TEVIS COOPER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(November 19, 2012)
Before TJOFLAT, KRAVITCH and EDMONDSON, Circuit Judges.
PER CURIAM:
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Tevis Cooper, who pleaded guilty to possession with intent to distribute five
grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), appeals the
district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for reduction of
sentence, which was based on Amendment 750. Cooper contends that, pursuant
to Freeman v. United States, __ U.S. __, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011),
the district court erred by concluding that he was ineligible for a section
3582(c)(2) reduction because of his career offender status. No reversible error has
been shown; we affirm.
We review only for abuse of discretion a district court’s decision to deny
reduction of a defendant’s sentence pursuant to section 3582(c)(2), United States
v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005), but we review de novo its
conclusions about the scope of its legal authority under section 3582(c)(2). United
States v. James, 548 F.3d 983, 984 (11th Cir. 2008).
In a section 3582(c)(2) proceeding, a district court may not modify a term of
imprisonment unless a defendant was sentenced based on a sentencing range that
has “subsequently been lowered” by the Sentencing Commission. See 18 U.S.C. §
3582(c)(2). The applicable policy statements provide that a sentence reduction is
not authorized under section 3582(c)(2) if “‘the amendment does not have the
effect of lowering the defendant’s applicable guideline range because of the
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operation of another guideline or statutory provision.’” United States v. Moore,
541 F.3d 1323, 1327-28 (11th Cir. 2008) (quoting U.S.S.G. § 1B1.10, comment.
(n.1(A))).
Amendment 750, which has been made retroactive, adjusted the base
offense levels listed in the Drug Quantity Table in U.S.S.G. § 2D1.1(c) to limit the
sentencing disparity between powder cocaine and crack cocaine offenses. See
U.S.S.G. App. C., amend. 750; U.S.S.G. § 1B1.10(c). Nevertheless, if a defendant
was sentenced as a career offender, his base offense level was determined under
the career-offender guideline in U.S.S.G. § 4B1.1(b): the drug-quantity guideline
in § 2D1.1(c) ultimately played no role in his sentence. Moore, 541 F.3d at 1327.
Although Amendment 750 might have reduced Cooper’s base offense level
under section 2D1.1, it would not have lowered his total offense level or his
applicable guidelines range because the district court had sentenced Cooper as a
career offender under section 4B1.1. Under this enhancement, Cooper was subject
to a base offense level of 34, without regard to the quantity of crack cocaine
involved in his offense conduct.
Contrary to Cooper’s assertion, the Supreme Court’s decision in Freeman
offers him no relief. In Freeman, five justices of the Supreme Court ruled that
entering into a Fed.R.Crim.P. 11(c)(1)(C) plea agreement did not categorically bar
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a defendant from obtaining relief pursuant to section 3582(c). Freeman, __ U.S. at
__, 131 S.Ct. at 2695 (Sotomayor, J., concurring); see Marks v. United States, 430
U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977) (noting that, “the holding
of the Court may be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds.”). Instead, the Court
explained, where such an agreement “expressly uses a Guidelines sentencing range
to establish the term of imprisonment, and that range is subsequently lowered by
the Commission, the defendant is eligible for sentence reduction under
§ 3582(c)(2).” Id. at __, 131 S.Ct. at 2698.
This Freeman circumstance is not the situation here. Cooper’s 188-month
sentence was not based on a sentence jointly agreed-upon by the parties in a plea
agreement nor did it expressly rely on a guideline range that was later reduced.
Instead, Cooper’s sentence was based entirely on the career offender enhancement
provisions, which do not incorporate section 2D1.1’s drug quantity table, and thus,
was unaffected by Amendment 750.
Cooper is like the movant in Moore. Amendment 750 reduced his base
offense level but did not lower his applicable guideline range, which was dictated
by his career offender status. Accordingly, Cooper is not eligible for a section
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3582(c)(2) sentence reduction, and the district court did not abuse its discretion by
denying him one.*
AFFIRMED.
*
Cooper offers no support for his dubious argument that the district court might have quietly
rejected the career-offender enhancement at sentencing and instead imposed an above-Guidelines
sentence that was, in fact, based on the drug quantity table. His argument therefore is waived.
See United States v. Flores, 572 F.3d 1254, 1265 n.3 (11th Cir. 2009) (where a plaintiff identifies
an argument on appeal but fails to provide supporting authority or facts, we deem the argument
not briefed, and thus waived).
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