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                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-13204
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 3:09-cr-00173-TJC-TEM-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

DALLAS DEVANE SYLVESTER,

                                                           Defendant-Appellant.

                         ________________________

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

                               (January 8, 2014)

Before MARCUS, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

      Dallas Sylvester 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 to the
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Sentencing Guidelines. In 2009, Sylvester pled guilty to one count of distribution

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

sentencing, the district court found that Sylvester was a career offender pursuant to

U.S.S.G. § 4B1.1 and that his enhanced advisory guideline range was 151 to 188

months. After the government filed a substantial assistance motion under U.S.S.G.

§ 5K1.1 and 18 U.S.C. § 3553(e), the court then reduced Sylvester’s guideline

range to 120 to 150 months and sentenced Sylvester to 120 months’ imprisonment.

The court later denied Sylvester’s § 3582(c)(2) motion challenging his sentence.

On appeal, Sylvester argues that the district court erred in concluding that

Amendment 750 did not reduce his guideline calculations because it had sentenced

Sylvester under the career offender provisions of § 4B1.1. After thorough review,

we affirm.

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

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

, 1319

(11th Cir. 2012). We are bound by the opinion of a prior panel unless the Supreme

Court or this Court sitting en banc overrules that opinion. 

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

defendant who has been 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,


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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)). The Guidelines explain that the amendment relied

upon for § 3582(c)(2) relief must lower the “applicable guideline range,” which 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.” 

retroactively lowered the sentencing range applicable to

crack cocaine offenses by revising the crack cocaine quantity tables listed in §

2D1.1(c). U.S.S.G. App. C, amend. 750 (2011). Amendment 750 did not make

any changes to § 4B1.1, the career offender guideline provision. See 

defendant is sentenced as a career offender, his base offense level is

determined under § 4B1.1, not under § 2D1.1 based on his attributed drug

quantities. U.S.S.G. § 4B1.1; United States v. Moore, 

, 1327 (11th

Cir. 2008). In Moore, we held that Amendment 706, which reduced the base

offense level for crack cocaine offenses, was inapplicable to the sentences of four

defendants who had been sentenced under § 4B1.1 as career 

. The defendants’ sentences were based on the applicable guideline ranges


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for career offenders, and the defendants’ otherwise applicable base offense levels

under § 2D1.1 played no role in the calculation of those ranges. 

      Notably, in that case, defendant Moore had received a sentence below his

otherwise applicable career offender guideline range, and the district court had

provided that the downward departure was predicated on the government’s §

5K1.1 motion for a downward departure based on substantial assistance. 

1330. We noted that the district court did not find that Moore’s criminal

history was overrepresented under § 4B1.1, and there was no indication that the

district court had sentenced Moore to a downward departure sentence based on the

guideline range that would have applied absent the career offender designation. 

In his appeal, Moore had relied on two district court cases that had

permitted § 3582(c)(2) relief for career offender defendants where the original

sentencing courts had departed downward pursuant to § 4A1.3 from the career

offender guidelines to the original Chapter Two sentencing range. 

We

held that those cases were dissimilar from Moore’s case because, for Moore, “there

[was] no basis for concluding that the reduction of Moore’s base offense level

lowered the sentencing range relied upon by the district court in determining his

sentence.” 

      In Freeman v. United States, a four justice plurality of the Supreme Court

ruled that § 3582(c)(2) relief is available to a defendant who entered into a


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Fed.R.Crim.P. 11(c)(1)(C) plea agreement that includes an agreed-upon sentence

that is expressly based on a guideline range that has been subsequently lowered by

the Sentencing Commission. 

, 2690 (2011). In her concurring

opinion, Justice Sotomayor said that sentences imposed pursuant to a Rule

11(c)(1)(C) plea agreement are “based on” the plea agreement itself and not the

applicable guideline range.      

(Sotomayor, J., concurring in the

judgment). Nonetheless, where a plea agreement expressly applied a particular

guideline range, Justice Sotomayor agreed that the plea agreement was based on

that guideline range. 

(Sotomayor, J., concurring in the judgment). If

that guideline range is later lowered by the Sentencing Commission, the defendant

would be eligible to seek § 3582(c)(2) relief. 

held, after Freeman, that Moore remains binding precedent in

this Circuit. 

. We explained in Lawson that neither the

Freeman 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.” 

that

Freeman was not “clearly on point to the issue that arose in Moore” -- whether

career offenders were eligible for § 3582(c)(2) relief based on the retroactive

lowering of crack cocaine base offense levels. 

held that a

defendant who was convicted of a crack cocaine offense, but sentenced as a career


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offender under § 4B1.1, was still not eligible for a § 3582(c)(2) reduction under

Amendment 750. 

district court properly denied Sylvester’s § 3582(c)(2) motion

because, as a career offender, Amendment 750 did not have the effect of lowering

his guideline range. See 

his arguments on appeal, Sylvester’s

guideline range was “based on” the career offender guideline in § 4B1.1, not the

drug quantity guideline in § 2D1.1 that was affected by Amendment 750. See 

Sylvester’s argument that the Supreme Court’s decision in Freeman

abrogated this Court’s decision in Moore, our decision in Lawson explicitly

foreclosed this argument. See 

immaterial that, unlike the defendant in

Lawson, Sylvester received a substantial assistance downward departure from his

career offender guideline range because the advisory guideline range at issue in a §

3582(c)(2) proceeding is the range determined prior to any departures or variances

by the sentencing court. U.S.S.G. § 1B1.10, comment. (n.1(A)). In this instance,

that range was Sylvester’s range under § 4B1.1.             Moreover, like Moore,

Sylvester’s reduction was based on substantial assistance, not on the district court’s

desire to depart downward to the § 2D1.1 guideline range. See 

.

      AFFIRMED.




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