United States v. Corey Faison

Case: 15-15411 Date Filed: 12/06/2016 Page: 1 of 5

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
_______________________

No. 15-15411
Non-Argument Calendar
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D.C. Docket No. 7:10-cr-00024-HL-TQL-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

COREY FAISON,

Defendant-Appellant.

_____________________

Appeal from the United States District Court
for the Middle District of Georgia
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(December 6, 2016)

Before TJOFLAT, JORDAN and JULIE CARNES, Circuit Judges.

PER CURIAM:

Corey Faison, proceeding pro se, appeals the district court's denial of his

motion to reduce his sentence, pursuant to 18 U.S.C. § 3582(c)(2), based on
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Amendments 706 and 782 to the Sentencing Guidelines. He contends that his

110-month sentence is above the guidelines range, after applying Amendments 706

and 782, and thus should be reduced. He also challenges, for the first time, his

career-offender designation. He argues that his prior convictions no longer qualify

as predicate convictions under U.S.S.G. § 4B 1.1, in light of the Supreme Court's

decision in Johnson v. United States, 576 U.S.____ , 135 S. Ct. 2551, 192 L. Ed. 2d

569 (2015)—in which the Supreme Court held that the residual clause of the

ACCA is unconstitutionally vague.

We review the district court's conclusions about the scope of its legal

authority under § 3582(c)(2) de novo. United States v. Colon, 707 F.3d 1255,1258

(11th Cir. 2013).

A district court may modify a defendant's term of imprisonment if the

defendant was sentenced based on a sentencing range that has subsequently been

lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Any reduction,

however, must be consistent with the Sentencing Commission's policy statements.

Id. When the district court considers a § 3582(c)(2) motion, it must first recalculate

the guidelines range under the amended guidelines. United States v. Bravo, 203

F.3d 778, 780 (11th Cir. 2000). When recalculating the guidelines range, it can only

substitute the amended guideline and must keep intact all other guidelines decisions

made during the original sentencing. Id. A defendant is eligible for a sentence

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reduction under § 3582(c)(2) when an amendment listed in U.S.S.G. § 1B1.10(d)

lowers his guidelines range that was calculated by the sentencing court prior to any

departure or variance. U.S.S.G. § 1B1.10, comment. (n. 1(A)).

Amendment 706 reduced the U.S.S.G. § 2D 1.1(c) offense levels in crack

cocaine cases and became effective in November 2007. U.S.S.G. App. C, amend.

706. Similarly, Amendment 782 provided a two-level reduction in the base offense

levels for most drug quantities listed in the Drug Quantity Table in

§ 2Dl.l(c) and became effective in November 2014. U.S.S.G. App. C, amend.

782. A district court is not authorized to reduce a defendant's sentence under

§ 3582(c)(2) where a retroactively applicable guidelines amendment reduces his

base offense level but does not alter the guidelines range upon which his sentence

was based. United States v. Moore, 541 F.3d 1323,1330 (11th Cir. 2008).

Specifically, when a drug offender is sentenced under the career-offender guideline

in § 4B1.1, the guidelines range upon which his sentence is based is calculated from

§ 4B1.1, not § 2D1.1. United States v. Lawson, 686 F.3d 1317,1321 (11th Cir.

2012). Because an amendment to § 2D 1.1 does not affect a career offender's

guidelines range, he is ineligible for a sentence reduction under § 3582(c)(2) based

on an amendment to that guideline. Id. (affirming the denial of a sentence reduction

under Amendment 750 to the Sentencing Guidelines).

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Section 3582(c)(2) does not authorize resentencing. Dillon v. United States,

560 U.S. 817, 831,130 S. Ct. 2683, 2694,177 L. Ed. 2d 271 (2010). Indeed, the

Supreme Court has noted that it only permits sentence reduction within narrow

bounds, and that the relevant policy statement instructs that a court proceeding

under that subsection "shall leave all other guideline application decisions

unaffected." Id.

The district court did not err by denying Faison's motion for a sentence

reduction because Amendments 706 and 782 did not lower his guidelines range.

Amendments 706 and 782 did not affect Faison's guidelines range because his total

offense level and guidelines range were determined by the career-offender

guideline in § 4B1.1, not § 2D1.1. See also Lawson, 686 F.3d at 1321. Moreover,

the fact that the court departed below the guidelines range has no bearing on

whether Amendments 706 and 782 apply to Faison. See U.S.S.G. § 1B1.10,

comment, (n. 1(A)) (stating that the retroactively applicable amendment must

reduce the defendant's guidelines range that was calculated before the application of

a departure). Although Faison argues that his career offender designation is no

longer valid in light of Johnson, that issue lies outside the scope of the present

proceeding. See Dillon, 560 U.S. at 831,130 S. Ct. at 2694. Therefore, the court

correctly concluded that Faison was ineligible for a sentence reduction based on

Amendments 706 and 782.

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AFFIRMED.

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