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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14907
Non-Argument Calendar
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D.C. Docket No. 9:06-cr-80126-DTKH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRYANT LEON COUNCIL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 23, 2013)
Before CARNES, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
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Bryant Council, a federal prisoner convicted of possession of intent to
distribute at least five grams of crack cocaine, in violation of 21 U.S.C. §
841(a)(1), appeals the district court’s denial of his motion for a sentence reduction,
pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 750. Council argues that,
despite the fact that he was sentenced under the career offender provision, he is
eligible for a sentence reduction under § 3582(c)(2) because Amendment 750
reduced the sentencing range for the drug quantity for which he was held
responsible. He further argues that, because the Fair Sentencing Act of 2010
(FSA) reduced the statutory maximum sentence for his offense, which in turn
would have lowered Council’s base offense level and concomitant sentencing
guideline range, he is eligible for a sentence reduction under § 3582(c)(2).
We review de novo the district court’s legal conclusions about the scope of
its authority under § 3582(c)(2). United States v. Lawson, 686 F.3d 1317, 1319
(11th Cir.) (per curiam), cert. denied, 133 S. Ct. 568 (2012). Section 3582(c)(2)
provides that a court may reduce a defendant’s sentence where the defendant was
sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission. § 3582(c)(2); U.S.S.G.
§ 1B1.10(a)(1). Any reduction must be consistent with applicable policy
statements issued by the Sentencing Commission and must be based on a
retroactively applicable guideline amendment listed in § 1B1.10(c). Id. According
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to § 1B1.10, a sentence reduction is unauthorized under § 3582(c)(2) where an
amendment does not have the effect of lowering a defendant’s “applicable
guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).
The FSA lowered the statutory mandatory minimum penalties for crack
cocaine offenses in 21 U.S.C. § 841(b). See Fair Sentencing Act of 2010, Pub. L.
No. 111-220 § 2(a), 124 Stat. 2372, 2372 (2010). In addition, the FSA directed the
Sentencing Commission to promulgate emergency amendments to bring the
Guidelines into conformity with its provisions “as soon as practicable.” Pub. L.
111-220 § 8, 124 Stat. at 2374. Pursuant to this directive, the Sentencing
Commission promulgated Amendment 750, which, in pertinent part, altered the
drug quantity tables of the guidelines, located in U.S.S.G. § 2D1.1, by increasing
the quantity of crack cocaine required to trigger each offense level. U.S.S.G. App.
C, amend. 750.
A career offender’s offense level is determined by U.S.S.G. § 4B1.1(b),
rather than § 2D1.1. § 4B1.1(b). We have held that a career offender is not
entitled to § 3582(c)(2) relief where a retroactive guideline amendment reduces his
base offense level, but does not alter the sentencing range upon which his sentence
was based. See Lawson, 686 F.3d at 1320–21. We recently addressed the
applicability of Amendment 750 and the FSA in the context of an § 3582(c)(2)
proceeding, holding that the district court did not have the authority to grant a
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§ 3582(c)(2) motion where Amendment 750 had no effect on a defendant’s
advisory guideline range. See United States v. Berry, 701 F.3d 374, 377 (11th Cir.
2012) (per curiam). We further observed that “the FSA is not a guidelines
amendment by the Sentencing Commission, but rather a statutory change by
Congress, and thus it does not serve as a basis for a § 3582(c)(2) sentence
reduction.” Id.
Here, the district court correctly denied Council’s § 3582(c)(2) motion.
Amendment 750 did not alter Council’s advisory guideline range because he was
sentenced as a career offender, and therefore he was not sentenced based on a
sentencing range that has subsequently been lowered by the Sentencing
Commission. Further, the FSA’s amendments to the statutory maximum penalties
for drug offenses cannot serve as the basis for a § 3582(c)(2) reduction.
Accordingly, we affirm.
AFFIRMED.
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