Case: 12-10743 Date Filed: 12/18/2012 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10743
Non-Argument Calendar
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D.C. Docket No. 4:02-cr-00245-WTM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OPOLLO REY JOHNSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(December 18, 2012)
Before HULL, JORDAN and BLACK, Circuit Judges.
PER CURIAM:
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Opollo Rey Johnson appeals the district court’s denial of his motion for a
reduction in his 240-month sentence, pursuant to 18 U.S.C. § 3582(c)(2). He
contends that Freeman v. United States, 131 S. Ct. 2685 (2011), gave the district
court authority to resentence him, and that his sentence was based on the crack
cocaine guidelines rather than his designation as a career offender.
A defendant may file a motion to modify a term of imprisonment if the
defendant was sentenced to a term of imprisonment based on a sentencing range
that has subsequently been lowered by the Sentencing Commission. 18 U.S.C.
§ 3582(c)(2). We review a decision to reduce a sentence pursuant to 18 U.S.C.
§ 3582(c)(2) for abuse of discretion, and legal interpretations de novo. United
States v. Williams, 549 F.3d 1337, 1338-39 (11th Cir. 2008).
Amendment 750 revised the crack cocaine quantity tables in U.S.S.G.
§ 2D1.1 to conform to the Fair Sentencing Act of 2010, which amended certain
statutory minimum sentences. See U.S.S.G. App. C, amend. 750 (effective Nov. 1,
2011). A subsequent amendment made Amendment 750 retroactive, permitting
sentence reductions under 18 U.S.C. § 3582(c)(2). See U.S.S.G. App. C, amend.
759. However, a reduction is inappropriate if an offender was originally sentenced
as a career offender. See United States v. Moore, 541 F.3d 1323, 1330 (11th Cir.
2008). We have held that Freeman did not overrule Moore because Freeman did
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not address defendants who were sentenced as career offenders. United States v.
Lawson, 686 F.3d 1317, 1320-1321 (11th Cir. 2012).
The PSI assigned Johnson a guidelines range based on a career offender
enhancement. The district court explicitly adopted the PSI in full during
Johnson’s sentencing hearing. The district court adopted a guidelines range based
on the career offender enhancement, and departed downward from the career
offender range based on Johnson’s criminal history. Accordingly, the sentence
was not based on the guidelines range for crack cocaine, and Johnson was
ineligible for a sentence reduction under Amendment 750. See Moore, 541 F.3d at
1330. Thus, we affirm the district court’s denial of Johnson’s 18 U.S.C.
§ 3582(c)(2) motion.
AFFIRMED.
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