USCA11 Case: 22-12204 Document: 18-1 Date Filed: 04/11/2023 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12204
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EARNEST WARE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 1:14-cr-00038-LAG-TQL-1
____________________
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2 Opinion of the Court 22-12204
Before ROSENBAUM, JILL PRYOR, and ED CARNES, Circuit Judges.
PER CURIAM:
Earnest Ware, proceeding pro se, appeals the district court’s
order denying his motion for a sentence reduction under 18 U.S.C.
§ 3582(c)(2) and for compassionate release under § 3582(c)(1)(A).
The district court construed the motion as one for compassionate
release under § 3582(c)(1)(A) and denied it, concluding that Ware
had failed to show any extraordinary and compelling reason that
would justify release. Ware contends that the court erred by failing
to consider his arguments under § 3582(c)(2) challenging his status
as a career offender.
I.
In 2015 Ware pleaded guilty to one count of possessing with
the intent to distribute more than 5 grams of methamphetamine in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii). Ware’s presen-
tence investigation report (PSR) calculated his base offense level at
34 based on the drug quantity table in U.S.S.G. § 2D1.1(c)(3) (2014),
with no adjustments. Because of his two previous Georgia felony
convictions for robbery by force and possession with intent to dis-
tribute MDMA, the PSR classified Ware as a career offender under
U.S.S.G. § 4B1.1(a). The applicable career offender offense level
under U.S.S.G. § 4B1.1(b)(2) was 34, 1 but because that offense level
1 Offense level 34 applies to career offenders whose current crime carries a
statutory maximum of 25 years imprisonment or more. U.S.S.G.
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22-12204 Opinion of the Court 3
was not greater than Ware’s offense level before applying the ca-
reer offender enhancement, the career offender enhancement did
not change Ware’s offense level. See U.S.S.G. § 4B1.1(b) (“Except
as provided in subsection (c), if the offense level for a career of-
fender from the table in this subsection is greater than the offense
level otherwise applicable, the offense level from the table in this
subsection shall apply.”). His offense level remained 34.
The PSR subtracted three levels for Ware’s acceptance of re-
sponsibility and timely entry of his guilty plea, netting a total of-
fense level of 31. Ware’s prior convictions would have put him in
criminal history category IV, but his career offender status in-
creased his criminal history category to VI. See id. (“A career of-
fender’s criminal history category in every case under this subsec-
tion shall be Category VI.”) Based on his total offense level and
criminal history category, Ware’s advisory guidelines range was
188 to 235 months. See id. § 5A.
Ware objected to his career offender status, arguing that his
robbery by force conviction should not be considered a qualifying
crime of violence. At sentencing the district court overruled
Ware’s objection and sentenced him to 188 months in prison fol-
lowed by four years of supervised release. 2
§ 4B1.1(b)(2). The statutory maximum sentence for Ware’s current federal
offense was 40 years. See 21 U.S.C. § 841(b)(1)(B).
2 If Ware had not been classified as a career offender, his advisory guidelines
range would have been 151 to 188 months. See U.S.S.G. § 5A. During the
sentence hearing the court explained that based on the § 3553(a) factors it
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4 Opinion of the Court 22-12204
In 2019 Ware filed a pro se motion for a sentence reduction
under the First Step Act of 2018 3 and under any other “existing,
proposed, and pending legislation and law” that might apply. He
asked the district court to exercise its discretion to reduce his sen-
tence in light of his rehabilitation efforts. The court appointed
counsel for Ware for purposes of its consideration of the motion.
The court construed the motion as seeking relief under 18 U.S.C.
§ 3582(c)(1)(B), which authorizes sentence reductions when ex-
pressly permitted by statute, and concluded that Ware was not eli-
gible for a sentence reduction under § 404 of the First Step Act be-
cause he had not been convicted of a “covered offense” as defined
by that section of the Act. The court noted Ware’s appointed coun-
sel agreed that he was not eligible for a sentence reduction based
on the First Step Act.
In 2022 Ware filed a pro se motion titled “3582(c)(2) Motion
for Sentence Reduction Based on the First Step Act of 2018,” chal-
lenging his status as a career offender based on changes in the law.
Ware first contended that he no longer has a qualifying crime of
violence under the career offender guidelines because he was not
would have sentenced Ware to 188 months even if he were not a career of-
fender. The court pointed to Ware’s history and characteristics, the nature
and circumstances of his offense, and the need to promote respect for the law
as factors that supported the 188-month sentence. Considering Ware’s crimi-
nal history, the court observed that he had been given a “second chance” when
he was released on probation, but he kept on violating the law.
3 See First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (Dec. 21, 2018)
(“First Step Act”).
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22-12204 Opinion of the Court 5
convicted of a crime requiring violent force. He relied on the Su-
preme Court’s decision in Johnson v. United States, 576 U.S. 591
(2015), which, according to Ware, held that “the definition of a vi-
olent felony was unconstitutionally vague and that violent force
had to occur during the crime.”
Ware also contended that § 401 of the First Step Act entitled
him to a reduced sentence. His position was that under the First
Step Act his robbery conviction should not have been used to en-
hance his sentence because he did not spend more than a year and
a day in prison for that conviction. Finally, Ware asserted that his
previous arrests should not have counted against him because they
occurred more than fifteen years ago.
In addition to his various § 3582(c)(2) arguments, Ware also
sought compassionate release under § 3582(c)(1)(A) on the grounds
that “his sentence is an extraordinary and compelling reason[] for a
compassionate release during this [COVID-19] pandemic.”
The district court construed Ware’s motion as one for com-
passionate release under § 3582(c)(1)(A) and denied relief. It con-
cluded that Ware had not shown any extraordinary and compelling
reason warranting a sentence reduction. It also found that the 18
U.S.C. § 3553(a) sentencing factors weighed heavily against release.
This is Ware’s appeal. He contends that the district court
failed to consider his arguments under § 3582(c)(2) that he is no
longer a career offender because he has no qualifying crimes of vi-
olence in his criminal history.
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6 Opinion of the Court 22-12204
II.
We review de novo whether a defendant is eligible for a sen-
tence reduction under 18 U.S.C. § 3582(c). United States v. Bryant,
996 F.3d 1243, 1251 (11th Cir. 2021); see United States v. Giron, 15
F.4th 1343, 1345 (11th Cir. 2021); United States v. Webb, 565 F.3d
789, 792 (11th Cir. 2009). We review only for an abuse of discretion
the district court’s denial of an eligible defendant’s motion for a
sentence reduction under § 3582(c)(1)(A), (c)(2), or the First Step
Act. See Bryant, 996 F.3d at 1251; Giron, F.4th at 1345; Webb, 565
F.3d at 792; United States v. Jones, 962 F.3d 1290, 1296 (11th Cir.
2020).
III.
“A district court has no inherent authority to modify a de-
fendant’s sentence and may do so only when authorized by a stat-
ute or rule.” Giron, 15 F.4th at 1345 (quotation marks omitted).
Section 3582(c) allows a district court to reduce a defendant’s sen-
tence in limited circumstances, three of which are relevant here.
See 18 U.S.C. § 3582(c). First, under § 3582(c)(1)(A)(i) a court may
grant compassionate release if: (1) there are extraordinary and com-
pelling reasons for doing so; (2) a sentence reduction would be con-
sistent with U.S.S.G. § 1B1.13; and (3) the § 3553(a) factors weigh
in favor of compassionate release. See Giron, 15 F.4th at 1347;
United States v. Tinker, 14 F.4th 1234, 1237–38 (11th Cir. 2021).
Second, under § 3582(c)(1)(B) a court may reduce a term of impris-
onment if a statute expressly permits it. Third, under § 3582(c)(2)
a court may reduce a term of imprisonment if the defendant has
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22-12204 Opinion of the Court 7
been sentenced based on a sentencing range that has since been
lowered by the Sentencing Commission. Ware has not shown that
he is entitled to a sentence reduction under any of those provisions.
Ware does not appear to challenge the district court’s denial
of his request for compassionate release under § 3582(c)(1)(A), but
in any event, the district court did not abuse its discretion in deny-
ing that relief. A district court may not reduce a sentence under
§ 3582(c)(1)(A) unless there is an extraordinary and compelling rea-
son for doing so. See 18 U.S.C. § 3582(c)(1)(A)(i); Giron, 15 F.4th
at 1346. The Sentencing Commission’s policy statement in
U.S.S.G. § 1B1.13 identifies four categories of extraordinary and
compelling reasons: a defendant’s medical condition, his age, his
family circumstances, or other reasons “[a]s determined by the Di-
rector of the Bureau of Prisons.” U.S.S.G. § 1B1.13 cmt. n.1. That
policy statement governs all motions under § 3582(c)(1)(A), and the
only circumstances that can rise to the level of extraordinary and
compelling reasons for compassionate release are those in the four
categories listed in § 1B1.13. See Giron, 15 F.4th at 1346.
In support of his § 3582(c)(1)(A) motion, Ware claimed that
his sentence is an extraordinary and compelling reason for compas-
sionate release in light of the COVID-19 pandemic. Because
Ware’s reason is not one that § 1B1.13 identifies as extraordinary
and compelling, the district court properly denied the motion.
The court also properly declined to consider Ware’s
§ 3582(c)(2) arguments because Ware is not eligible for relief under
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8 Opinion of the Court 22-12204
that provision.4 A defendant is eligible for a sentence reduction
under § 3582(c)(2) only when an amendment listed in U.S.S.G.
§ 1B1.10(d) has retroactively lowered his applicable guidelines
range. U.S.S.G. § 1B1.10, cmt. n.1(A); see also United States v. Car-
aballo-Martinez, 866 F.3d 1233, 1239–40 (11th Cir. 2017). Ware has
not pointed to any guidelines amendment listed in § 1B1.10(d) that
has lowered his applicable guidelines range. Without a qualifying
amendment, the district court lacked the authority to reduce his
sentence under § 3582(c)(2). See U.S.S.G. § 1B1.10(a)(2).
To the extent Ware is attempting to use § 3582(c)(2) to relit-
igate his career offender status, we have held that Ҥ 3582(c)(2) does
not authorize a sentencing or resentencing proceeding.” Cara-
ballo-Martinez, 866 F.3d at 1239 (quoting Dillon v. United States,
560 U.S. 817, 825 (2010)); see also U.S.S.G. § 1B1.10(a)(3). “[A]ll
original sentencing determinations remain unchanged with the
sole exception of the guideline range” (and only if it has been low-
ered by a retroactively applicable amendment). United States v.
Bravo, 203 F.3d 778, 781 (11th Cir. 2000); see also U.S.S.G.
§ 1B1.10(b)(1); Dillon, 560 U.S. at 826 (“Section 3582(c)(2)’s text, to-
gether with its narrow scope, shows that Congress intended to au-
thorize only a limited adjustment to an otherwise final sentence
and not a plenary resentencing proceeding.”).
4 Even though the district court’s order did not address Ware’s § 3582(c)(2)
arguments, we may affirm on any basis supported by the record. See United
States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008). His ineligibility for
relief under that provision is a basis for affirmance supported by the record.
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22-12204 Opinion of the Court 9
In Ware’s case, his criminal history score and career offender
status are “sentencing determinations” unaffected by a qualifying
guidelines amendment, so they must “remain unchanged.” See
Bravo, 203 F.3d at 781; see also Dillon, 560 U.S. at 831 (holding that
the district court properly declined to address the defendant’s sen-
tence challenges where the aspects of his sentence the defendant
sought to correct were not affected by a guidelines amendment
listed in § 1B1.10(d) and were “outside the scope of the proceeding
authorized by § 3582(c)(2)”). 5
Construing Ware’s pro se pleading liberally, as we should,
see Webb, 565 F.3d at 792, his motion could be understood as hav-
ing sought relief under § 3582(c)(1)(B), the provision authorizing a
sentence reduction when expressly permitted by a statute like the
First Step Act. See, e.g., Jones, 962 F.3d at 1297. But § 3582(c)(1)(B)
does not help Ware either.
Section 404 of the First Step Act expressly permits a district
court to reduce a sentence for certain “covered offense[s].” First
Step Act of 2018, Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222
(2018). But here, the district court lacked jurisdiction to consider
any argument based on § 404 of the First Step Act. That’s because
5 Ware relies on Johnson v. United States, where the Supreme Court held that
the residual clause of the Armed Career Criminal Act’s definition of “violent
felony” was unconstitutionally vague. 576 U.S. at 597–606. But a Supreme
Court decision is not a guidelines amendment by the Sentencing Commission
that can justify relief under 18 U.S.C. § 3582(c)(2). See, e.g., United States v.
Jones, 548 F.3d 1366, 1369 (11th Cir. 2008).
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10 Opinion of the Court 22-12204
the Act bars courts from considering a second request for relief un-
der § 404 if a previous motion brought under that section was de-
nied on the merits. Id. § 404(c). Because the district court had de-
nied Ware’s earlier motion to reduce his sentence under the First
Step Act on the grounds that he is not eligible for relief under § 404
of the Act, a second request for § 404 relief was due to be denied.
Ware also believes that § 401 of the First Step Act applies to
him. That section reduced mandatory minimums for repeat of-
fenders of certain drug-related crimes and changed the types of
predicate felonies that may be used to enhance those sentences.
See id. § 401(a)–(b). Ware is wrong about § 401’s applicability for
several reasons, not the least of which is that § 401 and its amend-
ments do not apply to sentences like Ware’s that were imposed be-
fore the First Step Act was enacted in 2018. Id. § 401(c).
Ware has not shown that he is entitled to relief under any
provision in § 3582(c).
AFFIRMED.