[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 8, 2011
No. 11-13156
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 3:95-cr-00007-HES-MCR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CALVIN SOLOMON,
a.k.a. Scabo,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 8, 2011)
Before PRYOR, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Calvin Solomon appeals the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion to reduce his sentence. His motion was based on Amendment
706 to U.S.S.G. § 2D1.1(c), which awards a two-level reduction in the base
offense level for certain crack cocaine offenses. See U.S.S.G. app. C amend. 706
(Nov. 2007). For those crack cocaine offenses, the two-level reduction of
Amendment 706 applies retroactively to defendants already sentenced. See
U.S.S.G. app. C amend. 713 (May 2008). Solomon asks this Court to decide
whether his particular circumstances justify the application of Amendment 706.
After thorough review, we affirm the ruling of the district court.
Amendment 706 does not provide relief to those defendants who are
sentenced as career offenders under U.S.S.G. § 4B1.1. See United States v.
Moore, 541 F.3d 1323, 1327 (11th Cir. 2008). At sentencing, the district court
found Solomon met the definition of a career offender, but Solomon was not
sentenced under the career offender guidelines of U.S.S.G. § 4B1.1. Instead, the
district court sentenced him under the drug guidelines of U.S.S.G. § 2D1.1(c). On
appeal, Solomon argues that he is eligible for relief pursuant to Amendment 706,
because he was not sentenced as a career offender.
Solomon is indeed correct that he was not sentenced under the career
offender guidelines. Where the base level offense under the drug guidelines is
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greater than the calculation under the career offender guidelines, the sentencing
court is to apply the higher drug guideline. See U.S.S.G. § 4B1.1(b). Solomon’s
drug offense level of 38 exceeded the base offense level of 37 under the career
offender guidelines. Thus, the district court properly sentenced Solomon under
the drug guidelines at level 38.
We review de novo the district court’s legal conclusions regarding the scope
of its authority under 18 U.S.C. § 3582(c)(2). Moore, 541 F.3d at 1326. A district
court may modify a term of imprisonment when that term is “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 policy statements issued by the Sentencing Commission. See
id. The policy statements say that a reduction is not authorized if the amendment
“does not have the effect of lowering the defendant’s applicable guideline range.”
U.S.S.G. § 1B1.10(a)(2)(B). Specifically, the application note for § 1B1.10
provides that a reduction under § 3582(c)(2) is not warranted where the
amendment “is applicable to the defendant but the amendment does not have the
effect of lowering the defendant’s applicable guideline range because of the
operation of another guideline or statutory provision.” U.S.S.G. § 1B1.10 cmt.
n.1(A).
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In reviewing a § 3582(c)(2) motion, this Court recalculates the defendant’s
sentence “by substituting the amended guideline range for the originally applied
guideline range, and then using that new base level to determine what ultimate
sentence it would have imposed.” United States v. Bravo, 203 F.3d 778, 780 (11th
Cir. 2000); see also U.S.S.G. § 1B1.10(b)(1) (“the court shall determine the
amended guideline range that would have been applicable to the defendant if the
amendment(s) to the guidelines listed in subsection (c) had been in effect at the
time the defendant was sentenced”). Thus, we must now determine the guideline
range that would have applied to Solomon if Amendment 706 had been in effect at
his original sentencing. See U.S.S.G. § 1B1.10(b)(1).
Because the district court determined that Solomon qualified as a career
offender, if Amendment 706 had been in effect at Solomon’s original sentencing,
the career offender offense level of 37 would have governed. Using the career
offender table’s offense level of 37 along with the criminal history category of VI,
the guideline range for Solomon would not have changed, but would still have
been 360 months to life. See U.S.S.G. § 4B1.1(b).
Thus, even though Amendment 706 applies to Solomon, the operation of
another guideline provision—U.S.S.G. § 4B1.1(b)—means “the amendment does
not have the effect of lowering [his] applicable guideline range.” U.S.S.G.
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§ 1B1.10 cmt. n.1(A). Cf. Moore, 541 F.3d at 1330 (declining to apply
§ 3582(c)(2) reduction for Amendment 706, where defendants were sentenced as
career offenders under § 4B1.1, because “it would not affect their guideline
ranges”). As a result, Solomon is not eligible for a reduction under § 3582(c)(2).
AFFIRMED.
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