Case: 12-11959 Date Filed: 12/21/2012 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11959
Non-Argument Calendar
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D.C. Docket No. 4:03-cr-10004-KMM-2
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,
versus
MARSHELL COOPER,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(December 21, 2012)
Before DUBINA, Chief Judge, MARTIN and FAY, Circuit Judges.
PER CURIAM:
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Appellant Marshell Cooper, a federal prisoner, appeals from the district
court’s denial of her motion to reduce sentence, filed pursuant to 18 U.S.C.
§ 3582(c)(2). On appeal, Cooper argues that the district court should have reduced
her sentence under Amendment 750 to the Sentencing Guidelines because:
(1) under Freeman v. United States, 564 U.S. ___, 131 S. Ct. 2685, 180 L. Ed.2d
519 (2011), she is eligible for a reduction even though she was sentenced as a
career offender; (2) the Fair Sentencing Act (“FSA”) changed the minimum
sentence that she faced; (3) the district court counted her criminal history against
her several times; and (4) the crack-powder cocaine sentencing disparity is unfair.
We review de novo a district court’s conclusions about the scope of its legal
authority under § 3582(c)(2). United States v. Moore, 541 F.3d 1323, 1326 (11th
Cir. 2008).
A district court may modify a term of imprisonment that was based on a
sentencing range that has subsequently been lowered by the Sentencing
Commission. 18 U.S.C. § 3582(c)(2). A reduction, however, must be “consistent
with applicable policy statements issued by the Sentencing Commission.” Id. The
applicable policy statements, found in U.S.S.G. § 1B1.10, state that “[a] reduction
in the defendant’s term of imprisonment . . . is not authorized under 18 U.S.C.
§ 3582(c)(2) if . . . [the] amendment . . . does not have the effect of lowering the
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defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).
Amendment 750 to the Sentencing Guidelines amended the drug quantity
table in § 2D1.1(c) to reduce offense levels in crack cocaine cases. See U.S.S.G.
App. C, Amend. 750. Amendment 759 made the drug quantity table amendment
retroactive, and it became effective on November 1, 2011. See id., Amend. 759.
In Moore, we addressed whether Amendment 706, which similarly reduced
the base offense levels for crack cocaine offenses, authorized reductions under §
3582(c)(2) for defendants who had been convicted of crack cocaine offenses, but
had been sentenced under the career offender guidelines. See Moore, 541 F.3d at
1325-26. We explained that § 3582(c)(2) only authorizes reductions to sentences
that were “based on” sentencing ranges that were subsequently lowered. Id. at
1327. As Amendment 706 did not lower the career offender offense levels, we
concluded that it did not lower the sentencing range upon which a career
offender’s sentence had been based. Id. We also explained that the commentary
to § 1B1.10 “[made] clear” that a § 3582(c)(2) reduction was not authorized where
an amendment lowered a defendant’s base offense level for the offense of
conviction, but not the career offender sentencing range under which the
defendant was sentenced. Id. at 1327-28; see also U.S.S.G. § 1B1.10, comment.
(n.1(A)).
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Even after the Supreme Court’s decision in Freeman, Moore remains
binding precedent in our Circuit. United States v. Lawson, 686 F.3d 1317, 1321
(11th Cir.), cert. denied, (U.S. Oct. 29, 2012) (No. 12-6573). Freeman had
nothing to do with defendants who were assigned a base offense level under one
guideline section, but were ultimately assigned a total offense level and guideline
range under § 4B1.1. Therefore, a defendant who was convicted of a crack
cocaine offense but sentenced as a career offender was still not eligible for a
§ 3582(c)(2) reduction under Amendment 750. Id.
We recently have held that the FSA may not be used to reduce a sentence
pursuant to a § 3582 motion because it is not a guidelines amendment issued by
the Sentencing Commission. United States v. Berry, ____ F.3d ___, No. 11150,
2012 WL 5503789 (11th Cir. Nov. 14, 2012). Further, the FSA has not been made
retroactively applicable to sentences imposed before its 2010 passage. Id. at 4–5.
Cooper’s argument that she is entitled to a § 3582 reduction, despite her
status as a career offender, is foreclosed by our decision in Lawson. See Lawson,
686 F.3d at 1321. Cooper does not contest that she was sentenced as a career
offender. Lawson confirms that Moore is still binding precedent, and, under
Moore, Cooper is not eligible for a sentence reduction because she was sentenced
as a career offender. See id.; see also Moore, 541 F.3d at 1330.
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None of Cooper’s other arguments for a sentence reduction deal with a
retroactive amendment to the Guidelines issued by the Sentencing Commission.
This includes Cooper’s argument, raised for the first time on appeal, that the FSA
should apply to her motion. See Berry, ___ F.3d ___. 2012 WL 5503789, at 1.
Accordingly, we hold that a sentence reduction is not authorized under 18 U.S.C.
§ 3582, and we affirm the district court’s order denying the motion to reduce
sentence.
AFFIRMED.
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