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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10662
Non-Argument Calendar
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D.C. Docket No. 0:04-cr-60026-KAM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JERMAINE GIBSON,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 18, 2012)
Before TJOFLAT, CARNES and WILSON, Circuit Judges.
PER CURIAM:
On July 26, 2004, Jermaine Gibson pled guilty (pursuant to a plea
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agreement) to conspiracy to possess with intent to distribute 50 grams or more of
crack cocaine, in violation of 21 U.S.C. § 846. At sentencing, the District Court,
based on the presentence investigation report prepared by the court’s probation
office,1 determined that U.S.S.G. § 2D1.1 provided a base offense level of 32 for
Gibson’s offense, since the offense involved at least 50 grams but less than 150
grams of crack.2 Gibson had at least two prior felony convictions for a crime of
violence or a controlled-substance offense, so the court designated him a career
offender under U.S.S.G. § 4B1.1 with a criminal history category of VI. The
statutory maximum penalty for the offense was life imprisonment; the court
consequently increased Gibson’s base offense level to 37. That offense level was
reduced by three levels to level 34 pursuant to U.S.S.G. § 3E1.1 to reflect
Gibson’s acceptance of responsibility. The offense level of 34 and criminal
history category of VI then yielded a sentence range of 262 to 327 months’
imprisonment.
The Government moved the District Court for a downward departure from
that range pursuant to U.S.S.G. § 5K1.1 to give Gibson credit for the substantial
assistance he had provided the Government in several investigations. The court
1
The report was prepared in accordance with the 2003 Guideline Manual
2
The court held Gibson accountable for 85 grams of crack.
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granted the motion and sentenced Gibson to prison for a term of 156 months.
In February 2008, Gibson moved the District Court to reduce his sentence
pursuant to 18 U.S.C. § 3582(c)(2), basing his motion on Amendment 706 to the
Sentencing Guildelines, which reduced by two levels most of the base offense
levels in the drug quantity table for offenses involving crack. The Government
opposed the motion on motion on the ground that Amendment 706 did not apply
because Gibson had been sentenced as a career offender and Amendment 706 did
not lower his offense level since that level was controlled by the career offender
guideline, § 4B1.1, not the offense guideline, § 2D1.1. The District Court agreed
and denied the motion. Gibson appealed, and this court affirmed. United States v.
Gibson, No. 08-12293 (January 7, 2009) (not published). United States v. Moore,
541 F.3d 1323 (11th Cir. 2008), controlled our decision. As in Moore, “Gibson’s
guideline range was determined by application of the career offender guideline
and the crack cocaine base offense level played no ultimate role in his sentence.”
In December 2011, Gibson again moved the District Court for a sentence
reduction pursuant to § 3582(c)(2). He based his motion on the retroactive
application of Amendment 750 to the Guidelines, which took effect on November
1, 2011. The Amendment altered the drug quantity tables in U.S.S.G. § 2D1.1(c)
by increasing the quantity of crack required to trigger each base offense level in
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order to conform the levels to the statutory changes to the mandatory minimum
terms of imprisonment created by the Fair Sentencing Act of 2010, Pub. L. No.
111-220, 124 Stat. 23272. The District Court denied the motion, holding, as it did
in denying Gibson’s previous motion for sentence reduction, that Gibson was not
eligible for a sentence reduction because he was sentenced as a career offender.
Gibson now appeals the ruling.
We are bound by this court’s decision in United States v. Moore “unless and
until it is overruled by this [C]ourt en banc or by the Supreme Court.” United
States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003). Where a retroactively
applicable guideline amendment reduces a defendant’s base offense level, but does
not alter the sentencing range upon which his sentence was based, the District
Court is not authorized to grant a sentence reduction pursuant to § 3582(c)(2).
Moore, 541 F.3d at 1330. This includes the situation in which a retroactive
amendment to § 2D1.1(c) would result in a lower base offense level, but the
defendant was sentenced as a career offender. See id. at 1326-30 (holding that a
defendant whose original sentence was based upon the career-offender guideline,
and not § 2D1.1, could not receive a sentence reduction based on Amendment 706
because it did not have the effect of lowering the applicable guideline range).
Furthermore, we held in Moore that a defendant’s receipt of a sentence below the
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Guidelines sentence range pursuant to the Government’s § 5K1.1 motion, as was
the case here, did not mean that the defendant had not been sentenced based on his
status as a career offender. Id. at 1330.
AFFIRMED.
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