Case: 13-10273   Date Filed: 08/06/2013   Page: 1 of 5


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-10273
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 4:06-cr-00061-RH-CAS-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

KENNETH DEWAYNE COPELAND,
a.k.a. Kent D. Copeland,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Northern District of Florida
                     ________________________

                            (August 6, 2013)

Before BARKETT, MARCUS, and PRYOR, Circuit Judges.

PER CURIAM:
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      Kenneth Copeland, a federal prisoner proceeding pro se, appeals the district

court’s denial of his motion to reduce sentence, pursuant to 18 U.S.C. § 3582(c)(2)

and Amendment 750 to the Sentencing Guidelines. As relevant background, in

December 2006, Copeland pled guilty to: (1) distributing cocaine base, in violation

of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and 851; (2) possessing with intent to

distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and

(b)(1)(D),1 and 851, and 18 U.S.C. § 2; (3) possessing a firearm in furtherance of a

drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and (4) being a

convicted felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1)

and 924(a)(2). The district court found that Copeland was a career offender and

sentenced him to 262 months’ imprisonment. In January 2012, Copeland,

proceeding pro se, moved for a reduction of sentence pursuant to § 3582(c)(2) and

Amendment 750. The district court denied Copeland’s motion, finding that

Copeland was not eligible for relief because he was sentenced as a career offender,

not under the crack cocaine guideline provision.

      On appeal, Copeland argues for the first time that: (1) this Court’s

application of Dillon v. United States, 560 U.S. ___, 

, 

(2010), violates separation-of-powers principles and that it was impermissible

for Congress to delegate its power to legislate to the Sentencing Commission; and


      1
          Copeland pled guilty to facts that included possession of 142.5 grams of marijuana.
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(2) U.S.S.G. § 1B1.10 acts as a mandatory-minimum statute that sets his

mandatory-minimum sentence at 262 months, based solely on judge-found facts

that were not charged in the indictment.2

       We review de novo the district court’s legal conclusions regarding the scope

of its authority under 18 U.S.C. § 3582(c)(2). United States v. Lawson, 

, 1319 (11th Cir. 2012). We review issues raised for the first time on appeal

for plain error. United States v. Moreno, 

, 1220 (11th Cir. 2005).

The four-prong plain-error analysis requires a defendant to show: (1) an error,

(2) that is plain, (3) that affects substantial rights, and (4) that the error seriously

affected the fairness, integrity, or public reputation of judicial proceedings. 

may modify a term of imprisonment “in the case of a

defendant who was 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). The Sentencing Commission has noted, however, that a

defendant is ineligible for a sentence reduction where an amendment “does not

have the effect of lowering [his] applicable guideline range because of the

operation of another guideline or statutory provision.” U.S.S.G. § 1B1.10,

comment. (n.1(A)). Amendment 750 retroactively lowered the sentencing range


       2
         Copeland alternatively requests mandamus relief and asks us to appoint him counsel in
connection with his request for mandamus relief. We decline to address Copeland’s request for a
writ of mandamus because mandamus relief is not proper in connection with this appeal.
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applicable to crack cocaine offenses by revising the crack cocaine quantity tables

listed in U.S.S.G. § 2D1.1(c). U.S.S.G. App. C, amend. 750 (2011).

      In Dillon, the Supreme Court recognized that Congress defined eligibility for

a sentence reduction based on the Sentencing Commission’s determinations, and

noted that § 3582(c)(2) applies “only to a limited class of prisoners . . . whose

sentence was based on a sentencing range subsequently lowered by the

Commission.” Dillon, 560 U.S. at ___, 130 S.Ct. at 2691. The Court held that the

remedial holding of Booker—that the Guidelines must be treated as advisory—

does not apply to limited sentence reductions authorized by § 3582(c)(2). Id.

at ___, 130 S.Ct. at 2693.

      In United States v. Moore, 

, 1327-30 (11th Cir. 2008), we held

that Amendment 706, which reduced the base offense level for crack-cocaine

offenses, was inapplicable to the sentences of defendants who had been sentenced

under § 4B1.1 as career offenders. The defendants’ sentences were based on the

applicable guideline ranges for career offenders, and the defendants’ otherwise

applicable base offense levels under § 2D1.1 played no role in the calculation of

those ranges. 

(holding that the Supreme

Court’s decision in Freeman v. United States, 564 U.S. ___, ___, 

,

2690, 

(2011), did not overrule Moore, and applying the reasoning

of Moore to Amendment 750).


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      The district court properly denied Copeland’s motion for relief under

§ 3582(c)(2) because he was sentenced as a career offender, and thus,

Amendment 750 did not have the effect of lowering his guideline range under

§ 4B1.1. Additionally, the district court did not plainly err by not considering, sua

sponte, Copeland’s constitutional challenges because a district court may not

consider constitutional challenges to a sentence during a § 3582(c)(2) proceeding.

      AFFIRMED.




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