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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14471
Non-Argument Calendar
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D.C. Docket No. 2:00-cr-14078-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE COKUMOA ROUSE, III,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 2, 2013)
Before TJOFLAT, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Willie Cokumoa Rouse, a federal prisoner proceeding pro se, appeals the
district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence
reduction. On appeal, Rouse argues that district court erred by declining to
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retroactively apply Amendment 750 and the reduced statutory penalties of the Fair
Sentencing Act of 2010 (“FSA”) to reduce his sentence. For the reasons set forth
below, we affirm the district court’s denial of Rouse’s § 3582(c)(2) motion.
I.
In 2001, Rouse was convicted of three counts of possession with intent to
distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1). The presentence
investigation report (“PSI”) held him accountable for 16 grams of crack cocaine
and, thus, he had a base offense level of 26 pursuant to § 2D1.1. However, as he
had at least two prior felony convictions for a crime of violence or a controlled
substance offense, the PSI classified him as a career offender pursuant to § 4B1.1.
Because the statutory maximum penalty for his offenses was 40 years’
imprisonment, his offense level was 34. He received a three-level reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b)(2). Based on a total
offense level of 31 and a criminal history category of VI, Rouse’s guideline range
was 188 to 235 months’ imprisonment. The district court imposed a total sentence
of 235 months’ imprisonment.
In 2008, Rouse filed a motion for a sentence reduction pursuant to
§ 3582(c)(2), arguing that Amendment 706 lowered the base offense levels in
§ 2D1.1 for his crack cocaine offense. The district court denied the motion,
explaining that Rouse was sentenced to 235 months’ imprisonment because he
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qualified as a career offender. Thus, his base offense level remained 31 for
sentencing purposes and, therefore, Amendment 706 did not reduce his sentence.
In 2012, Rouse, proceeding pro se, filed the instant motion to reduce his
sentence, pursuant to § 3582(c)(2) and Amendment 750. According to Rouse,
Amendment 750 made retroactive the FSA’s reduced statutory penalties. Thus,
application of Amendment 750 lowered the statutory maximum for his offenses
and, as a result, his career offender guideline range was also lowered. Rouse
further argued that the Supreme Court recognized in Dorsey v. United States, 567
U.S. ___, 132 S. Ct. 2321, 183 L. Ed. 2d 250 (2012), that § 3582(c)(2) authorized
district courts to retroactively apply the FSA to those sentenced before the FSA’s
effective date. Finally, citing to Freeman v. United States, 564 U.S. ___, 131 S.
Ct. 2685, 180 L. Ed. 2d 519 (2011), Rouse argued that, because § 2D1.1 was part
of the analytical framework used by the district court to calculate his initial
sentence, he was entitled to relief under § 3582(c)(2) and Amendment 750.
The district court denied Rouse’s motion because, due to his status as a
career offender, Amendment 750 did not lower his guideline range.
II.
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.), cert. denied, 133 S. Ct. 568 (2012). Section 3582(c)(2) provides that a
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court may reduce a defendant’s sentence where the defendant is 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); 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). 18 U.S.C.
§ 3582(c)(2); U.S.S.G. § 1B1.10(a)(1) & comment. (backg’d). According to
§ 1B1.10, a sentence reduction is unauthorized under § 3582(c)(2) where it does
not have the effect of lowering a defendant’s “applicable guideline range.”
U.S.S.G. § 1B1.10(a)(2)(B).
Before the FSA was signed into law on August 3, 2010, distribution of 5
grams or more of crack cocaine triggered the application of a statutory mandatory
minimum sentence of 5 years’ imprisonment and a maximum sentence of 40 years’
imprisonment. 21 U.S.C. § 841(b)(1)(B)(iii) (2009). The FSA changed the crack-
to-powder-cocaine ratio from 100-to-1 to about 18-to-1. Dorsey, 567 U.S. at __,
132 S. Ct. at 2326. The FSA also amended the sentencing provisions in 21 U.S.C.
§ 841(b)(1) by raising from 5 grams to 28 grams the amount of crack cocaine
necessary to trigger the 5-year mandatory minimum sentence and 40-year
maximum sentence. Fair Sentencing Act of 2010, Pub. L. No. 111–220 § 2(a), 124
Stat. 2372 (2010). Under the FSA, where a defendant has distributed less than 28
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grams of crack cocaine, a maximum sentence of 20 years’ imprisonment applies.
See 21 U.S.C. § 841(b)(1)(C). On June 21, 2012, the Supreme Court held in
Dorsey that the FSA’s reduced statutory mandatory minimums apply to defendants
who committed crack cocaine offenses before August 3, 2010, but were sentenced
after the date the FSA went into effect. Dorsey, 567 U.S. at ___, 132 at 2326.
Amendment 750 to the Sentencing Guidelines, made retroactively applicable
on November 1, 2011, by Amendment 759, makes permanent the temporary
emergency Amendment 748, which lowered the base offense levels for particular
crack cocaine quantities in § 2D1.1(c), pursuant to the FSA. See U.S.S.G. App. C,
Amend. 750, Reason for Amend. and U.S.S.G. App. C, Amend. 759. A career
offender’s offense level is determined by § 4B1.1(b), rather than § 2D1.1.
U.S.S.G. § 4B1.1(b). We have previously 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. In Lawson, we rejected a defendant’s
argument that, in light of the Supreme Court’s decision in Freeman, he was
entitled to a sentence reduction based on § 3582(c)(2) and Amendment 750,
notwithstanding his sentence being based on the career offender guideline. Id. at
1319-21. In Freeman, the question before the Supreme Court was whether
defendants who entered into Fed. R. Crim. P. 11(c)(1)(C) plea agreements were
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eligible for § 3582(c)(2) relief. 564 U.S. at ____, 131 at 2690. We determined that
neither the plurality opinion nor Justice Sotomayor’s concurrence in Freeman
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. Lawson, 686 F.3d at 1321. Thus, we held that Freeman did not
overrule our prior holding that a career offender was not entitled to § 3582(c)(2)
relief where his guideline range was not lowered by a retroactive amendment. Id.
Accordingly, we held that Lawson, a career offender, was not entitled to relief
based on Amendment 750 and § 3582(c)(2), as his guideline range based on
§ 4B1.1 was not reduced by Amendment 750. Id.
In United States v. Berry, we addressed the applicability of Amendment 750
and the FSA in the context of an § 3582(c)(2) proceeding. 701 F.3d 374, 376-77
(11th Cir. 2012). Berry was convicted of a crack cocaine offense and sentenced in
2002, and his initial guideline range was 360 months to life imprisonment, which
was based on his status as a career offender under § 4B1.1(b), not on the drug
quantity tables in § 2D1.1. Id. at 376. In addition, because Berry had two prior
felony drug convictions, he was subject to a statutory mandatory minimum life
sentence under 21 U.S.C. § 841(b)(1)(A) (2009), and, as a result, his guideline
sentence became life imprisonment, pursuant to U.S.S.G. § 5G1.1(c)(2). Id. at
376-377 & n.2. Berry filed a § 3582(c)(2) motion for a sentence reduction
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pursuant to Amendment 750, and the district court denied the motion. Id. at 376.
On appeal, we affirmed, holding that the district court did not have the authority to
grant Berry’s § 3582(c)(2) motion because Amendment 750 had no effect on
Berry’s initial guideline range of 360 months to life imprisonment or his guideline
sentence of life imprisonment. Id. at 377.
In addition, we rejected Berry’s argument that he was eligible for a
§ 3582(c)(2) reduction under the FSA, determining that the FSA was not a
guidelines amendment by the Sentencing Commission, but rather a statutory
change by Congress. Id. Thus, it did not serve as a basis for a § 3582(c)(2)
sentence reduction in Berry’s case. Id. Even assuming that Berry could bring his
FSA claim in a § 3582(c)(2) motion, we continued, his claim still failed because he
was convicted and sentenced in 2002 and the FSA did not apply retroactively to his
2002 sentences. Id. We pointed out that the general savings clause in 1 U.S.C.
§ 109 provides that the repeal of a statute shall not have the effect of releasing or
extinguishing any penalty incurred under that statute unless the repealing Act
expressly so provides. Id. We then agreed with “every other circuit to address the
issue” that there was no evidence that Congress intended the FSA to apply to
defendants who had been sentenced before the August 3, 2010, date of the FSA’s
enactment. Id. Finally, we distinguished the Supreme Court’s decision in Dorsey,
noting that Dorsey did not suggest that the FSA’s new mandatory minimums
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should apply to defendants, like Berry, who were sentenced before the FSA’s
effective date. Id. at 377-78.
In a footnote, we noted that, if Berry was resentenced under the FSA, his
statutory maximum sentence would remain life imprisonment, and his offense level
under U.S.S.G. § 4B1.1(b) would remain unchanged. Id. at 377 n.3. Thus, we
noted, even if Berry’s statutory mandatory minimum was reduced to 10 years
under the FSA, his guideline range under U.S.S.G. § 5G1.1 would be 360 months
to life imprisonment. Id.
After the parties filed their briefs in the instant appeal, we issued our
decision in United States v. Hippolyte, which addressed whether the FSA applies
retroactively to defendants, like Rouse, who were convicted and sentenced before
its effective date. No. 11-15933, manuscript op. at 14-15 (11th Cir. Mar. 14,
2013). In Hippolyte, the defendant was sentenced in 1996 for an offense involving
crack cocaine, and his sentence was based on the applicable 240-month statutory
mandatory minimum, which became his guideline sentence under U.S.S.G.
§ 5G1.1. Id. at 2-3. In 2011, Hippolyte moved for a sentence reduction based on
§ 3582(c)(2) and Amendment 750, and the district court denied the motion because
he had received the statutory minimum sentence for his offenses. Id. On appeal,
Hippolyte argued that the FSA applies in § 3582 proceedings. Id. at 3. In
affirming the district court’s decision, we relied on Berry, holding that, even if
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Hippolyte could raise a § 3582(c)(2) claim, the claim would fail because FSA did
not apply retroactively to his 1996 sentence. Id. at 14–15. We reaffirmed our
conclusion, in Berry, that the Supreme Court’s decision in Dorsey did not suggest
that the FSA should apply to defendants who were sentenced long before the
FSA’s effective date. Id. at 14. We explained that, because the FSA did not apply
to Hippolyte’s case, the statutory minimums that applied were the ones that were in
place at the time when he was sentenced in 1996. Id. at 15.
In the instant case, the district court correctly denied Rouse’s § 3582(c)(2)
motion because his guideline range was not lowered by Amendment 750.
Amendment 750 reduced the base offense levels in § 2D1.1, not in § 4B1.1, and,
contrary to Rouse’s assertion, Amendment 750 did not make the FSA retroactive to
defendants sentenced before its effective date. See U.S.S.G. App. C, Amend. 750;
U.S.S.G. App. C, Amend. 748; see also Lawson, 686 F.3d at 1321. Rouse was
initially assigned a base offense level under § 2D1.1, but his total offense level and
guideline range were based on § 4B1.1, not § 2D1.1, because he was a career
offender. Thus, Amendment 750 did not alter the sentencing range upon which
Rouse’s sentence was based. See Lawson, 686 F.3d at 1321. As Freeman did not
abrogate our prior holding—that defendants sentenced as career offenders,
pursuant to § 4B1.1, were not entitled to § 3582(c)(2) sentence reductions where
their guideline ranges were unaffected by a retroactive amendment—the district
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court properly determined that § 3582(c)(2) did not authorize a reduction in
Rouse’s sentence. Id. at 1320-21.
Next, to the extent that Rouse argues that he is eligible for a § 3582(c)(2)
reduction based on the FSA, his argument is foreclosed by our recent decisions in
Berry and Hippolyte. It is noteworthy that in Berry, unlike the present case,
application of the FSA’s lower statutory penalties in Berry’s § 3582(c)(2)
proceedings would have had no effect on his guideline range as calculated under
§ 4B1.1(b). See Berry, 701 F.3d at 377 n.3. In contrast, in the instant case, if the
FSA’s lower statutory penalties applied in Rouse’s § 3582(c)(2) proceedings, it
appears that his career offender guideline range would be reduced. See U.S.S.G.
§ 4B1.1(b)(2)-(3).
Nevertheless, the logic of Berry supports the conclusion that the district
court did not have the authority to grant Rouse’s § 3582(c)(2) motion. The FSA is
not an amendment to the Guidelines by the Sentencing Commission and, thus, it
cannot serve as a basis for a § 3582(c)(2) sentence reduction in Rouse’s case. See
Berry, 701 F.3d at 377. In any event, even assuming that Rouse could raise his
FSA claim in a § 3582(c)(2) motion, his claim fails because he was sentenced in
2001, before the August 3, 2010, effective date of the FSA, and, therefore, he
cannot benefit from the FSA’s lower statutory mandatory minimum provisions.
See Hippolyte, manuscript op. at 14-15. Contrary to Rouse’s assertion on appeal,
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Dorsey did not suggest that the FSA’s new statutory penalties should apply to
defendants who were sentenced before the FSA’s effective date. See Berry, 701
F.3d at 377-78 (providing that “Dorsey did not suggest that the FSA’s new
mandatory minimums should apply to defendants, like Berry, who were sentenced
long before the FSA’s effective date”); Hippolyte, manuscript op. at 14-15.
For the foregoing reasons, we affirm the district court’s denial of Rouse’s
§ 3582(c)(2) motion.
AFFIRMED.
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