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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10579
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D.C. Docket No. 2:98-cr-14021-KMM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
TIMOTHY CLARK,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 1, 2012)
Before WILSON, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
This appeal presents the issue whether recent amendments to the Sentencing
Guidelines permitted the district court to reduce the sentence of a defendant who
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was sentenced as a career offender, see U.S.S.G. § 4B1.1(A), but later received a
reduction in his term of imprisonment based on his substantial assistance to the
government in the prosecution of another offender, see Fed. R. Crim. P. 35(b).
Timothy Clark appeals the denial of his motion for a reduced sentence, 18 U.S.C.
§ 3582(c)(2), based on Amendment 750 to the Sentencing Guidelines, which
retroactively lowered the base offense levels for certain offenses involving crack
cocaine to conform to the Fair Sentencing Act of 2010. See U.S.S.G. App. C,
amend. 750 (Nov. 2011). We held in United States v. Moore, 541 F.3d 1323 (11th
Cir. 2009), that a defendant sentenced as a career offender is ineligible for a
sentence reduction under Amendment 706, which also lowered the base offense
levels applicable to crack cocaine offenses, U.S.S.G. § 2D1.1. Clark contends that
Amendment 759 to the Sentencing Guidelines, U.S.S.G. App. C, amend. 759
(Nov. 2011), abrogated our holding in Moore and granted the district court the
authority to reduce his sentence. We disagree and affirm.
I. BACKGROUND
In 1998, a federal jury found Clark guilty of possession with intent to
distribute cocaine base, in violation of 21 U.S.C. section 841(a)(1). The district
court sentenced Clark to 360 months in prison, as a career offender, under section
4B1.1(A) of the guidelines. In 2003, the government moved to reduce Clark’s
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sentence on the ground that Clark had provided “substantial assistance” to the
government. See Fed. R. Crim. P. 35(b). The district court granted that motion
and reduced Clark’s sentence to 240 months in prison.
In November 2011, the United States Sentencing Commission promulgated
Amendment 750, which lowered the base offense levels for crack cocaine
offenses. U.S.S.G. App. C, amend. 750; see U.S.S.G. § 2D1.1(c)(3) (Nov. 2011).
The Sentencing Commission provided that this part of Amendment 750 would
become retroactive on November 1, 2011. See U.S.S.G. § 1B1.10(c). Amendment
750 did not affect the guidelines for career offenders. See U.S. v. Lawson, no.
11-15912, slip op. at 7 (11th Cir. July 13, 2012).
The Sentencing Commission later promulgated Amendment 759, which
added new language to the policy statement in section 1B1.10(b)(2)(A) of the
Guidelines. Section 1B1.10(b)(2)(A) provides that a district court may not
“reduce the defendant’s term of imprisonment under 18 U.S.C. [section]
3582(c)(2) . . . to a term that is less than the minimum of the amended guideline
range.” “Before Amendment 759, an exception to that limitation allowed a district
court to lower a defendant’s prison sentence below the amended guidelines range
if the original sentence was, for any reason, below the original guidelines range.”
U.S. v. Glover, no. 12-10580, slip op. at 9 (11th Cir. July 11, 2012). See U.S.S.G.
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§ 1B1.10(b)(2)(B) (Nov. 2010). Amendment 759 narrowed that exception and
permitted a district court to “lower a defendant’s sentence below the amended
guidelines range only if the original sentence was below the original guidelines
range because the defendant provided substantial assistance to the government,”
id. at 9–10:
If the term of imprisonment imposed was less than the term of
imprisonment provided by the guideline range applicable to the
defendant at the time of sentencing pursuant to a government motion to
reflect the defendant’s substantial assistance to authorities, a reduction
comparably less than the amended guideline range determined under
subdivision (1) of this subsection may be appropriate.
U.S.S.G. § 1B1.10(b)(2)(B) (Nov. 2011). To decide “whether . . . a reduction in
the defendant’s term of imprisonment . . . is warranted, 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.” Id. § 1B1.10(b)(2)(B)(1). Like Amendment
750, Amendment 759 became retroactive on November 1, 2011.
On October 26, 2011, Clark filed a motion under section 3582(c)(2) to
reduce his sentence. He argued that he was eligible for a sentence reduction under
Amendments 750 and 759. The government objected on the ground that Clark
was ineligible for a reduction in sentence under Amendment 750. The government
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argued that Clark’s sentence was based on the career offender guidelines in
section 4B1.1, not the amended crack cocaine guidelines in section 2D1.1. The
district court denied Clark’s motion.
II. STANDARDS OF REVIEW
“In a § 3582(c)(2) proceeding, we review de novo the district court’s legal
conclusions regarding the scope of its authority under the Sentencing Guidelines.
We review de novo questions of statutory interpretation.” Moore, 541 F.3d at
1326 (citation and internal quotation marks omitted).
III. DISCUSSION
Clark argues that he is eligible for a sentence reduction, but “[a] court may
only modify a term of imprisonment in limited circumstances, including where a
defendant ‘has been sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing Commission.’”
Lawson, slip op. at 3 (quoting 18 U.S.C. § 3582(c)(2)). “[A] court cannot use an
amendment to reduce a sentence in a particular case unless that amendment
actually lowers the guidelines range in that case.” Glover, slip op. at 7. In other
words, if an amended guideline does not have the effect of lowering the
defendant’s sentencing range, the district court has no authority to reduce the
defendant’s sentence. Moore, 541 F.3d at 1330. The district court had no
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authority to reduce Clark’s sentence because Amendment 750 did not lower his
guideline range.
Our recent decisions in Lawson and Glover foreclose Clark’s argument.
Like Clark, Lawson’s total offense level and guidelines range was not based on
the drug quantity guidelines in section 2D1.1, but instead was based on the career
offender guidelines in section 4B1.1. We rejected Lawson’s argument that he was
entitled to a sentence reduction under section 3582(c)(2), based on Amendment
750 to the guidelines, because Amendment 750 “did not alter the sentencing range
upon which Lawson’s sentence was based.” Lawson, slip op. at 7 (internal
quotation marks and alteration omitted). We reached a similar conclusion in
Glover, where the defendant moved to reduce his sentence based on Amendment
750, even though his sentence was based on the guidelines range of life in prison,
see U.S.S.G. § 5G1.1(b). Because Amendment 750 did not alter Glover’s
guidelines range, we held that “Glover is not eligible for a sentencing reduction
under 18 U.S.C. § 3582(c)(2).” Glover, slip op. at 8. See also Moore, 541 F.3d at
1330 (Ҥ 3582(c)(2) does not authorize a reduction in sentence. Here, although
Amendment 706 would reduce the base offense levels applicable to the
defendants, it would not affect their guideline ranges because they were sentenced
as career offenders under § 4B1.1.”). We are bound by Lawson and Glover. See
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Lawson, slip op. at 3 (“We are bound by a prior panel opinion until the opinion’s
holding is overruled by the Supreme Court or by our Court sitting en banc.”).
Clark also argues that he is entitled to a reduced sentence because he later
received a sentence reduction based on his substantial assistance to the
government. Clark argues that, in the light of his sentence reduction for
substantial assistance, he is no longer imprisoned based on the guidelines for
career offenders. Clark contends that Amendment 759 supports his argument.
Glover squarely forecloses this argument. “Amendment 759 [does] nothing
more than limit a district court’s authority to reduce a defendant’s sentence below
the amended guidelines range.” Glover, slip op. at 10. Amendment 759 “does not
permit a court to reduce a defendant’s sentence based on a guidelines amendment
that does not lower his guidelines range.” Id. at 11. Clark’s guidelines range
remains the career offender guidelines range. “Neither Amendment 750 nor 759
changes that. And because neither amendment changes his guidelines range,
[Clark] is not entitled to resentencing under § 3582(c)(2).” Id. at 11–12.
Because the district court lacked the authority to reduce Clark’s sentence,
we AFFIRM the dismissal of Clark’s motion.
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