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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14549
Non-Argument Calendar
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D.C. Docket No. 3:08-cr-00293-HES-JRK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTWAN T. GIVENS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(March 26, 2013)
Before CARNES, MARCUS and MARTIN, Circuit Judges.
PER CURIAM:
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Antwan Givens appeals the district court’s denial of his motion to reduce his
sentence, filed pursuant to 18 U.S.C. § 3582(c)(2) and based on Amendment 750 to
the Sentencing Guidelines. After pleading guilty to conspiracy to distribute crack
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846, Givens was
found responsible for 1.49 grams of crack cocaine. Because of his criminal
history, Givens was deemed a career offender, with a guideline range of 151 to 188
months, factoring in his acceptance of responsibility. The district court concluded,
however, that the career offender designation overstated Givens’s criminal history
and the seriousness of the offense, and varied downward, sentencing Givens to 108
months’ imprisonment. On appeal, Givens claims that the district court erred by
denying his subsequent § 3582(c)(2) motion because the sentencing court had
varied downward from the career offender guideline range so his sentence was at
least in part “based on” the crack guidelines. He also says that the Supreme
Court’s decision in Freeman v. United States, 131 S.Ct. 2685 (2011), abrogated our
decision in United States v. Moore, 541 F.3d 1323 (11th Cir. 2008), in which we
concluded that career offenders were not eligible for relief under § 3582(c)(2) and
Amendment 706 to the Sentencing Guidelines. After careful review, we affirm.
We review de novo the district court’s legal conclusions regarding the scope
of its authority under the Sentencing Guidelines. Moore, 541 F.3d at 1326. The
district court is required to use the version of the policy statement included at §
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1B1.10 that is in effect on the date that the court decides the § 3582(c)(2) motion.
U.S.S.G. § 1B1.10, comment. (n.6).
Once pronounced, the district court’s authority to modify a sentence of
imprisonment is narrowly limited by statute. United States v. Phillips, 597 F.3d
1190, 1194-95 (11th Cir. 2010). Nevertheless, a district court may modify a
defendant’s term of imprisonment where the defendant was sentenced “based on a
sentencing range that has subsequently been lowered by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). When evaluating whether a defendant is
eligible for a reduced sentence, a district court should determine what new
sentence, if any, applies, “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.” United States v. Bravo, 203 F.3d
778, 780 (11th Cir. 2000). In § 3582(c)(2) proceedings, a district court must leave
“all original sentencing determinations . . . unchanged with the sole exception of
the guideline range that has been amended since the original sentencing.” Id. at
781 (emphasis in original). Then, the district court determines whether, in its
discretion, it will impose the newly calculated sentence under the amended
guidelines or retain the original sentence. Id.
Where an amendment does not have the effect of lowering the defendant’s
applicable guideline range, § 3582(c)(2) relief is inappropriate. 18 U.S.C. §
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3582(c)(2); U.S.S.G. § 1B1.10(a)(2)(B). The 2012 Commentary to the Guidelines
expressly provides that the applicable guideline range is “the guideline range that
corresponds to the offense level and criminal history category determined pursuant
to § 1B1.1(a), which is determined before consideration of any departure provision
in the Guidelines Manual or any variance.” U.S.S.G. § 1B1.10, comment.
(n.1(A)). The Supreme Court has held that a Commentary provision “which
functions to interpret a guideline or explain how it is to be applied” is binding as
long as the Commentary does not conflict with the Constitution, a federal statute,
or the guideline at issue. Stinson v. United States, 508 U.S. 36, 42-43 (1993)
(quotations and alterations omitted). The Court also indicated that the Sentencing
Commission could adopt commentary that would overrule prior judicial
constructions of a particular provision of the Guidelines, so long as the amended
commentary met the above standard. Id. at 46.
Amendment 750 altered the base offense levels for certain amounts of crack
cocaine. U.S.S.G. App. C, Amends. 748, 750. Previously, a defendant found
responsible for at least 1 but less than 2 grams of cocaine base received a base
offense level of 16. U.S.S.G. § 2D1.1(c)(12) (2008). Under the current Guidelines
and after Amendment 750, a defendant responsible for at least 1.4 but less than 2.8
grams of cocaine base has a base offense level of 14. U.S.S.G. § 2D1.1(c)(13).
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In Moore, we explained that § 3582(c)(2) only authorizes reductions to
sentences that were “based on” sentencing ranges that were subsequently lowered.
See Moore, 541 F.3d at 1327. Since 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 noted that
the Commentary to § 1B1.10(a) “ma[de] 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)) (noting that, for § 3582(c)(2) relief, the amendment must lower
the applicable guideline range, and specifically explaining that an amendment may
be applicable to a defendant without lowering the defendant’s applicable guideline
range because of the operation of another guideline or statutory provision). In so
doing, we distinguished the facts before us from two out of circuit district court
decisions in which the defendants had received downward departures from the
career offender guideline range to the otherwise applicable crack cocaine guideline
range, after the court determined under U.S.S.G. § 4A1.3 that their criminal
histories were substantially overrepresented. Moore, 541 F.3d at 1329-30.
In Freeman, a four-justice plurality ruled that § 3582(c)(2) relief is available
to a defendant sentenced under a Fed.R.Crim.P. 11(c)(1)(C) plea agreement that
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includes an agreed-upon sentence expressly based on a guideline range that was
subsequently lowered by the Sentencing Commission. Freeman, 131 S.Ct. at 2690.
In her concurring opinion, Justice Sotomayor said that sentences imposed pursuant
to a Rule 11(c)(1)(C) plea agreement are based on the agreement itself and not the
applicable guideline range. Id. at 2696 (Sotomayor, J., concurring). In United
States v. Lawson, 686 F.3d 1317, 1321 (11th Cir. 2012), we held that, after
Freeman, Moore remains binding precedent in this Circuit. Lawson explained that,
in Freeman, neither the plurality nor Justice Sotomayor “addressed defendants who
were assigned a base offense level under one guideline section, but who were
ultimately assigned a total offense level and guideline range under § 4B1.1.” Id.
Therefore, a defendant convicted of a crack cocaine offense but sentenced as a
career offender under § 4B1.1 was still not eligible for a § 3582(c)(2) reduction
under Amendment 750. Id.
Here, the district court did not err by denying Givens’s § 3582(c)(2) motion.
We explicitly rejected Givens’s argument about the impact of Freeman on Moore
in Lawson, 686 F.3d at 1321. Because Givens was sentenced as a career offender,
Moore dictates that Givens is not eligible for a reduced sentence under §
3852(c)(2). See Moore, 541 F.3d at 1327-28. Additionally, the amended
Commentary to § 1B1.10 clearly provides that the “applicable guideline range” is
the range determined before consideration of any departure provision or any
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variance. See U.S.S.G. § 1B1.10, comment. (n.1(A)). The Commentary provision,
therefore, completely forecloses Givens’s argument, especially since the Supreme
Court has held that a Commentary provision that explains how a guideline is to be
applied is binding so long as the Commentary does not conflict with the
Constitution, a federal statute, or the guideline at issue. See Stinson, 508 U.S. at
42-43, 45. Further, Givens’s argument that the Commentary interprets a statute
rather than a guideline provision is misplaced, since the Commentary to § 1B1.10
explains how to calculate the relevant offense level and “applicable guideline
range.” See U.S.S.G. § 1B1.10, comment. (nn. 1-6).
Moreover, even if not completely foreclosed by Moore and the Commentary
to § 1B1.10, Givens’s argument fails because there is no indication in the record
that the district court sentenced him “based on” the crack cocaine provisions.
Although the district court noted what Givens’s sentence would have been under
the crack guidelines at sentencing, the district court did not sentence him in
accordance with that range (24 to 30 months). Rather, he was sentenced to 108
months’ imprisonment, and the sizable difference between Givens’s sentence and
the range based on the crack provisions is sufficient to indicate that Givens’s
sentence was not based on the crack provisions. In addition, although the court
explained that the career offender range really overstated Given’s criminal history
and the seriousness of the offense and varied downward as a result, there was no
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indication that it chose the sentence that it did, 108 months, based on the crack
guidelines in § 2D1.1. Accordingly, we affirm.
AFFIRMED.
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