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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13128
Non-Argument Calendar
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D.C. Docket No. 0:91-cr-06032-DLG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROMAIN DANIEL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 10, 2013)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Romain Daniel, pro se, appeals the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion for a sentence reduction pursuant to Amendment 750 to the
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Sentencing Guidelines, which lowered the base offense levels applicable to crack
cocaine offenses under U.S.S.G. § 2D1.1. See U.S.S.G. App. C, amend. 750 (Nov.
2011). On appeal, Daniel argues that the Fair Sentencing Act of 2010 (FSA) and
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), are retroactively
applicable and, as applied to him, would result in a lower statutory maximum
sentence. This, he argues, would subsequently lower his Guideline range as a
career offender. Daniel specifically contends that the sentencing court must first
calculate his base offense level on the applicable drug quantity before it may
consider his career-offender status, and that, based on Amendment 750, his initial
base offense level under U.S.S.G. § 2D1.1 would be reduced, resulting in a lower
Guideline range. Daniel also argues that the district court abused its discretion by
failing to grant a hearing under U.S.S.G. § 6A1.3 or Federal Rule of Criminal
Procedure 32 to determine whether his sentence exceeded the statutory maximum.
Upon review of the record and consideration of the parties’ briefs, we affirm.
I. BACKGROUND
In 1991, Daniel pleaded guilty to one count of possession with intent to
distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count One), and one
count of possession of a firearm during and in relation to a drug-trafficking
offense, in violation of 18 U.S.C. § 924(c) (Count Three). The presentence
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investigation report (PSI) calculated Daniel’s base offense level at three, pursuant
to U.S.S.G. § 2D1.1(c)(5), because the offense involved at least 150 grams, but
less than 500 grams, of cocaine base. Daniel was held accountable for 198.2 grams
of cocaine base. Daniel also qualified as a career offender pursuant to U.S.S.G.
§ 4B1.1 because he was at least 18 years old at the time of the instant offense, the
instant offense was a controlled-substance offense, and he had at least two prior
felony convictions for controlled-substance offenses. Because the statutory-
maximum sentence was life imprisonment, the offense level was 37 pursuant to
§ 4B1.1.
Daniel received a two-level reduction for acceptance of responsibility,
resulting in a total offense level of 35. Based on this total offense level of 35 and a
criminal history category of VI, Daniel’s Guideline range was 292 to 365 months’
imprisonment. Daniel was sentenced to 292 months’ imprisonment as to Count
One, and 60 months’ imprisonment as to Count Three, with the sentences to run
consecutively.
In 2010, the FSA raised the drug quantity thresholds of crack cocaine
required to trigger the mandatory minimum imprisonment terms. Pub. L. No. 111-
220 § 2(a)(1), 124 Stat. 2372 (2010); U.S.S.G. App. C, amend. 750. In April 2012,
Daniel filed the instant § 3582(c)(2) motion asserting that the district court had
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authority to reduce his sentence based on the Sentencing Commission’s retroactive
Amendment 750. He initially argued that he was not foreclosed from a sentence
reduction based on the fact that he was sentenced as a career offender because that
would be inconsistent with United States v. Bravo, 203 F.3d 778 (11th Cir. 2000),
and U.S.S.G. § 1B1.10. Daniel further argued that the court committed plain error
by imposing a sentence that exceeded the 240-month statutory maximum, in
violation of Apprendi. Daniel also requested a hearing pursuant to U.S.S.G.
§ 6A1.3 because the drug quantity was not charged in the indictment and his
sentence was based upon the applicable statutory maximum of life imprisonment in
§ 841(b)(1)(A), and not the 240-month statutory maximum in § 841(b)(1)(C) that
applied where a conviction involved an undisclosed drug quantity.
The district court denied Daniel’s motion, holding that Amendment 750 did
not alter the sentencing range for career offenders such as Daniel. Daniel timely
moved for reconsideration and filed a notice of appeal. In his motion for
reconsideration, Daniel argued that the district court abused its discretion by not
granting an evidentiary hearing under § 6A1.3 to resolve the legal question of
whether his offense level should have been 34 based on a statutory maximum of 20
years’ imprisonment. The district court denied the motion for reconsideration
without comment.
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II. STANDARD 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.
United States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008). A district court’s
denial of an evidentiary hearing is reviewed for an abuse of discretion. United
States v. Hill, 643 F.3d 807, 874 (11th Cir. 2011) (citation omitted). A district
court abuses its discretion in a § 3582(c)(2) proceeding if it fails to apply the
proper legal standard or follow proper procedures in making its determination.
United States v. Jules, 595 F.3d 1239, 1241–42 (11th Cir. 2010).
III. ANALYSIS
A. Amendment 750 Sentence Reduction
Amendment 750 to the Sentencing Guidelines, made retroactively applicable
on November 1, 2011, lowered the base offense levels applicable to crack cocaine
offenses under U.S.S.G. § 2D1.1, pursuant to the FSA. See U.S.S.G. App. C,
amend. 750. As a result of those amendments, § 2D1.1(c) now assigns a base
offense level of 30 in cases involving at least 196 grams, but less than 280 grams,
of cocaine base. U.S.S.G. § 2D1.1(c)(5).
Generally, in considering a motion for a sentence reduction, the district court
must engage in a two-part analysis. Bravo, 203 F.3d at 780. First, the court must
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recalculate 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.” Id. Only the amended
Guideline is changed, and all other Guideline application decisions made during
the original sentencing should remain intact during this step. Id. Second, the court
must decide whether, in its discretion, it will impose the newly calculated sentence
or retain the original sentence. Id. at 781. The court should make this
determination in light of the 18 U.S.C. § 3553(a) factors. Id. A sentencing
adjustment pursuant to § 3582(c)(2) is not a de novo resentencing. Id.
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 of § 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). In Moore, this court noted that we undertake a two-
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step analysis in applying an amendment under § 3582(c)(2), but we nonetheless
stated that “Bravo is inapposite because the defendant in that case was not
sentenced as a career offender.” Id. at 1328. Therefore, Bravo did not control in
Moore, where the relevant amendment would have no effect on the defendants’
Guideline ranges due to their statuses as career offenders. Id. at 1328–29.
We recently addressed whether the FSA could serve as the basis for a
§ 3582(c)(2) motion in United States v. Berry, No. 12-11150, slip op. at 4 (11th
Cir. Nov. 14, 2012). Berry moved for a sentence reduction based on
Amendment 750. Id. at 1–2. We noted that Berry’s offense level and Guidelines
range were based on his status as a career offender under § 4B1.1. Id. at 3. More
importantly, Berry had two prior felony drug convictions and was subject to a
statutory mandatory minimum life sentence under § 841(b)(1)(A), such that his
Guideline range became life imprisonment. Id. at 3–4. Accordingly,
Amendment 750 had no effect on Berry’s Guideline range and the district court
lacked authority to grant his motion. Id. at 4. Berry also argued that he was
eligible for a sentence reduction based on the FSA, which became effective on
August 3, 2010. Id. We stated that “[t]he problem for Berry is the FSA is not a
guidelines amendment by the Sentencing Commission, but rather a statutory
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change by Congress, and thus it does not serve as a basis for a § 3582(c)(2)
sentence reduction in Berry’s case.” Id.
Even assuming, arguendo, that Berry could have brought his FSA claim in a
§ 3582(c)(2) motion, we stated that the claim would still fail because Berry was
sentenced in 2002, and Dorsey v. United States, 132 S. Ct. 2321 (2012) did not
suggest that the FSA applied retroactively to defendants who were sentenced
before the FSA’s effective date. Id. at 4–7. Instead, Dorsey held only that the
FSA’s new lower mandatory minimums applied “to the post-Act sentencing of pre-
Act offenders.” Id. at 6–7 (emphasis in original). We also noted that, after the
FSA, a defendant with one or more prior convictions for felony drug offenses is
subject to a mandatory minimum of 10 years’ imprisonment and a statutory
maximum of life imprisonment if the offense involved 28 grams or more of crack
cocaine. Id. at 6 n.3. Even if Berry were resentenced under the FSA, his statutory
maximum would remain life imprisonment, and his offense level and applicable
Guideline range under § 4B1.1 would remain the same. Id.
Finally, in Apprendi, the Supreme Court held that, “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” 530 U.S. at 490, 120 S. Ct. at 2362–63. We have held, in the
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context of collateral review, that Apprendi is not retroactively applicable.
McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001).
Here, the district court did not err in denying Daniel’s § 3582(c)(2) motion
to reduce his sentence. Amendment 750 would not affect Daniel’s Guideline range
because of his career-offender status. Moore, 541 F.3d at 1328–29. Although
Amendment 750 would have reduced his initial base offense level under
§ 2D1.1(c), the court ultimately sentenced him as a career offender, pursuant to
§ 4B1.1. Because the career-offender Guideline drove the court’s sentencing
calculations, the application of Amendment 750, which affects only § 2D1.1,
would not lower Daniel’s applicable Guideline range. U.S.S.G. App. C,
amend. 750. Thus, a reduction of his sentence would be contrary to the Sentencing
Commission’s policy statement, and is not authorized by § 3582(c)(2). See Moore,
541 F.3d at 1326–30; U.S.S.G. § 1B1.10(a)(2)(B). Therefore, despite Daniel’s
argument that the court was required to conduct a two-step analysis under Bravo,
Bravo does not control this case. See 203 F.3d at 780.
Daniel’s argument that the FSA entitles him to a sentence reduction also
fails. See Berry, No. 12-11150, slip op. at 4. Like Berry, even assuming
arguendo, that Daniel could bring his FSA claim in a § 3582(c)(2) motion, that
claim would still fail because Daniel was sentenced in 1991, and the FSA does not
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apply retroactively to defendants who were sentenced before August 3, 2010. Id.
at 4–7 (noting Dorsey’s holding that the FSA applies to pre-Act offenders who are
sentenced after the FSA’s effective date). Also, like Berry, even if Daniel was
entitled to be resentenced under the FSA based on the drug quantity of 198.2
grams, the statutory maximum sentence would remain life imprisonment, and his
career-offender offense level and applicable Guideline range under § 4B1.1 would
remain the same. 21 U.S.C. § 841(b)(1)(B); Berry, No. 12-11150, slip op. at 6 n.3.
Finally, Daniel’s argument that Apprendi reduces the applicable statutory
maximum from life imprisonment to 20 years because the drug quantity was not
charged in the indictment is misguided. Apprendi does not concern the application
of a retroactive Guideline amendment and does not apply in § 3582(c)(2)
proceedings, because in such proceedings district courts may only substitute the
amended Guideline, leaving all other sentencing decisions intact. See Bravo,
203 F.3d at 780–81. Moreover, Daniel was sentenced before the Supreme Court’s
decision in Apprendi, and this court has held that Apprendi is not retroactively
applicable in the context of a collateral review proceeding. See McCoy, 266 F.3d
at 1258. Accordingly, the district court did not err in denying Daniel’s
§ 3582(c)(2) motion to reduce his sentence.
B. Denial of an Evidentiary Hearing
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Under U.S.S.G. § 6A1.3(a), “[w]hen any factor important to the sentencing
determination is reasonably in dispute, the parties shall be given an adequate
opportunity to present information to the court regarding that factor.” Disputed
sentencing factors should be resolved at a hearing held in accordance with Federal
Rule of Criminal Procedure 32. U.S.S.G. § 6A1.3(b).
In Jules, the probation office provided the district court with a
memorandum, which was not docketed or provided to the parties, and stated that
the defendant had been sanctioned in prison three times for marijuana possession
and one time for being in an unauthorized area. 595 F.3d at 1241. The court
acknowledged Jules’s eligibility for a sentence reduction, but relied upon those
sanctions in denying Jules’s § 3582(c)(2) motion. Id. We held that when the
district court relies upon new information, “each party must be given notice of and
an opportunity to contest [the] new information.” Id. at 1245. Notice and
opportunity to respond, however, are not required when the court does not intend
to rely on the new information. Id.
In this case, unlike Jules, the district court lacked authority to reduce
Daniel’s sentence because he was sentenced as a career offender, and
Amendment 750 does not affect his Guideline range, as discussed above. See
595 F.3d at 1241. As a result, the court did not reach any sentencing factors, and
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there was no sentencing factor “reasonably in dispute” such that a hearing would
be warranted under § 6A1.3. U.S.S.G. § 6A1.3(a). Moreover, the court did not
rely on any new information to which Daniel would be entitled to notice and an
opportunity to contest, but instead determined that it lacked authority to reduce
Daniel’s sentence due to his career-offender status. Jules, 595 F.3d at 1245.
Accordingly, the court did not abuse its discretion in denying a hearing on Daniel’s
§ 3582(c)(2) motion.
Upon review of the entire record on appeal, and after consideration of the
parties’ appellate briefs, we affirm.
AFFIRMED.
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