Case: 19-13404   Date Filed: 05/08/2020   Page: 1 of 7



                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-13404
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:98-cr-00302-SCB-TGW-3



UNITED STATES OF AMERICA,

                                                               Plaintiff–Appellee,

                                 versus

ANDRE PEASE,

                                                         Defendant–Appellant.

                       ________________________

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

                              (May 8, 2020)

Before GRANT, LAGOA, and HULL, Circuit Judges.

PER CURIAM:
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      Andre Pease, proceeding pro se, appeals the district court’s denial of his

motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment

782 to the Sentencing Guidelines, and the denial of his motion for reconsideration.

After a careful review of the record and the parties’ briefs, we affirm.

                                          I.

      In 1998, Pease entered a guilty plea, pursuant to a written plea agreement, to

one count of conspiring to distribute cocaine. The plea agreement contained a

provision waiving Pease’s right to appeal his sentence except in the case of an

upward departure from the Sentencing Guidelines range, a sentence above the

statutory maximum, a sentence in violation of the law apart from the Sentencing

Guidelines, or an appeal by the government challenging the sentence imposed.

Although the factual basis in the plea agreement stated that Pease possessed with

the intent to distribute three kilograms of cocaine, the agreement also stated that

Pease’s offense was punishable by a mandatory minimum of ten years and a

maximum of life in prison, corresponding to the penalties for distribution of 5

kilograms or more of cocaine. See 18 U.S.C. § 841(b)(1)(A)(ii) (1996).

      Prior to sentencing, the probation officer prepared a presentence

investigation report (PSR) stating that Pease was responsible for at least 150

kilograms of cocaine, based on his participation in the charged conspiracy since

1993 or 1994. The PSR also stated that Pease should be sentenced as a career


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offender under U.S.S.G. § 4B1.1 because he had two qualifying prior felony

convictions.

      Pease objected to the PSR’s drug-quantity determination and to his

classification as a career offender. The district court sustained Pease’s drug-

quantity objection in part, finding that he was responsible for only six kilograms of

cocaine. Based on that finding, the district court determined that Pease’s statutory

sentencing range was ten years to life in prison followed by at least five years’

supervised release. But the court agreed with the probation officer’s conclusion

that Pease qualified as a career offender under the Sentencing Guidelines.

      If the district court had used the Guidelines drug-quantity table in § 2D1.1(c)

to calculate Pease’s Guidelines range, Pease’s base offense level for an offense

involving six kilograms of cocaine would have been 32, and with a four-level

leadership-role enhancement, his total offense level would have been 36. See

U.S.S.G. §§ 2D1.1(c), 3B1.1(a) (1997). But because Pease was a career offender,

the district court used the career-offender guideline (§ 4B1.1). With a statutory

maximum sentence of life, Pease’s total offense level under the career-offender

guideline was 37, and his criminal history category was VI.

His

corresponding Sentencing Guidelines range was 360 months to life.

Pt. A, Sentencing Table. The district court sentenced Pease to 360 months in

prison, followed by five years of supervised release.


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       Pease appealed his sentence, and we affirmed. United States v. Pease, 

(11th Cir. 2001). In his direct appeal, Pease challenged the district

court’s factual finding that he was responsible for six kilograms of cocaine. We

rejected that challenge because it was barred by the appeal waiver in Pease’s plea

agreement.

       Pease also argued that the district court’s use of the six-kilogram amount

found by the court at sentencing—rather than the unspecified amount alleged in the

indictment—to determine his statutory sentencing range violated the rule

established in Apprendi v. New Jersey, 

(2000), that “[o]ther than the

fact of a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable 

. We agreed that under Apprendi, drug

quantity was an element of Pease’s drug-trafficking offense that the court should

have required the government to prove to the jury beyond a reasonable doubt if not

admitted by Pease. 

–44. But we concluded that Pease had

not shown that the district court’s Apprendi error affected his substantial rights, as

required to meet the plain-error standard, because Pease’s 30-year sentence was




1
 We assumed without deciding that Pease’s Apprendi argument was not barred by his appeal
waiver. 

n.5.
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below the statutory maximum (40 years) that would have applied based on the

three-kilogram purchase that Pease admitted as part of his guilty plea.

       In 2019, Pease filed a motion pursuant to 18 U.S.C. § 3582(c)(2), seeking

the retroactive application of Amendment 782 to the United States Sentencing

Guidelines. Amendment 782 modified the drug-quantity tables in U.S.S.G.

§ 2D1.1 to lower the base offense levels corresponding to various drug quantities.

See U.S.S.G. App. C, amend. 782 (2014). As amended, § 2D1.1 provided a base

offense level of 30 for an offense involving at least 5 but less than 15 kilograms of

cocaine, and a base offense level of 26 for an offense involving at least 2 but less

than 3.5 kilograms of cocaine.

The district court denied Pease’s

motion, finding that he was not entitled to a sentence reduction under Amendment

782 because he was sentenced as a career offender. This appeal followed.

                                               II.

       Section 3582(c)(2) gives district courts the authority to reduce the sentence

of a prisoner who was “sentenced to a term of imprisonment based on a sentencing

range that has subsequently been lowered” by an amendment to the Sentencing

Guidelines, but only “if such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission.” 2 The applicable policy



2
 We review the district court’s conclusions about the scope of its legal authority under
§ 3582(c)(2) de novo. United States v. Colon, 

, 1258 (11th Cir. 2013).
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statement provides that a district court reviewing a § 3582(c)(2) motion “shall

determine the amended guideline range that would have been applicable to the

defendant” if the relevant amendment “had been in effect at the time the defendant

was sentenced.” U.S.S.G. § 1B1.10(b)(1). The policy statement further instructs

that in calculating the amended guideline range, “the court shall substitute only”

the amended guideline or guidelines “for the corresponding guideline provisions

that were applied when the defendant was sentenced and shall leave all other

guideline application decisions unaffected.”

A district court

proceeding under § 3582(c)(2) is required “to follow the Commission’s

instructions in § 1B1.10 to determine the prisoner’s eligibility for a sentence

modification.” Dillon v. United States, 

, 827 (2010).

      On appeal, Pease argues that the district court was required to recalculate his

Guidelines range under the career-offender guideline, using the 40-year statutory

maximum sentence for an offense involving only three kilograms of cocaine. In

this way, Pease sought to have the district court correct its Apprendi error in the

calculation of his applicable statutory maximum sentence—the same error that we

declined to correct in Pease’s direct appeal. He asserts that by using the lower

maximum sentence, his total offense level as a career offender would be 34,

resulting in a reduced Guidelines range of 262 to 327 months’ imprisonment.




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      Pease’s argument overlooks the fact that the district court was constrained

by § 1B1.10(b)(1) to leave its calculations under the career-offender guideline

untouched. The retroactive application of Amendment 782, which lowered the

applicable offense level under § 2D1.1, would not affect Pease’s guideline range

because his range was not calculated under that provision. And because

Amendment 782 did not affect § 4B1.1, the district court was not authorized to

correct any errors it made in calculating his Guidelines range under that provision

in 1999. See 

(“Because the aspects of his sentence that

Dillon seeks to correct were not affected by the Commission’s amendment to

§ 2D1.1, they are outside the scope of the proceeding authorized by § 3582(c)(2),

and the District Court properly declined to address them.”).

      Pease is not eligible for a sentence reduction under § 3582(c)(2) and

Amendment 782 because Amendment 782 did not affect Pease’s sentencing range

under U.S.S.G. § 4B1.1. See United States v. Hamilton, 

, 337 (11th

Cir. 2013). Accordingly, we affirm the district court’s denial of Pease’s

§ 3582(c)(2) motion.

      AFFIRMED.




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