Case: 12-10665   Date Filed: 07/30/2012   Page: 1 of 5




                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 12-10665
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:95-cr-00430-WPD-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

ROBERT BUTLER,

                                                         Defendant-Appellant.

                      ________________________

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

                             (July 30, 2012)

Before BARKETT, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 12-10665     Date Filed: 07/30/2012   Page: 2 of 5

      Robert Butler, a federal prisoner convicted of a crack cocaine offense,

appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce

his sentence per Amendment 750, which lowered the base offense levels

applicable to crack cocaine. See U.S.S.G. § 1B1.10(c). On appeal, Butler argues

that the reasoning of Freeman v. United States, ___ U.S. ___, 

(2011), undermined to the point of abrogation this Court’s rationale in United

States v. Moore, 

(11th Cir. 2008). He asserts that even though he

was sentenced as a career offender, he is not categorically ineligible for a sentence

reduction under § 3582(c)(2) because the offense level for his underlying crack

cocaine offense was “a relevant part of the analytical framework the district court

used to determine” Butler’s sentence.

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

of its authority under 18 U.S.C. § 3582(c)(2). 

district court may modify an imprisonment term “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).

      However, a reduction in the imprisonment term is not authorized under

§ 3582(c)(2) where the listed amendment does not have the effect of lowering the

                                          2
              Case: 12-10665     Date Filed: 07/30/2012    Page: 3 of 5

defendant’s applicable guideline range “because of the operation of another

guideline or statutory provision (e.g., a statutory mandatory minimum term of

imprisonment).” U.S.S.G. § 1B1.10, cmt. 1; see also 

541 F.3d at 1330 (“Where a retroactively applicable guideline amendment

reduces a defendant’s base offense level, but does not alter the sentencing range

upon which his or her sentence was based, § 3582(c)(2) does not authorize a

reduction in sentence.”).

      A district court follows a two-step process in ruling on a § 3582(c)(2)

motion. United States v. Bravo, 

, 780 (11th Cir. 2000). First, the

court must recalculate the defendant’s sentence “by substituting the amended

guideline range for the originally applied guideline range, and then using that new

base level to determine what ultimate sentence it would have imposed.” 

first step, only the amended guideline is changed. All other

guideline application decisions made during the original sentencing remain

intact.” 

it reaches the second step, the court must

decide, in its discretion, whether to retain the original sentence or to resentence the

eligible defendant under the amended guideline range. 

a defendant’s sentence is “based on” the guideline range applicable

to career offenders under U.S.S.G. § 4B1.1, the defendant’s base offense level

                                           3
                Case: 12-10665        Date Filed: 07/30/2012       Page: 4 of 5

under U.S.S.G. § 2D1.1 plays no role in the calculation of his guideline range.

See 

. Thus, even when a retroactive amendment reduces

such a defendant’s base offense level, the amendment would not lower his

applicable guideline range because of the application of the career offender

guidelines. See 

       In Freeman, five justices of the Supreme Court held that entering into a Rule

11(c)(1)(C) plea agreement did not categorically bar a defendant from obtaining

relief pursuant to 18 U.S.C. § 3582(c).1 See Freeman, ___ U.S. at ___, 131 S. Ct.

at 2695 (Sotomayor, J., concurring). Rather, where such a plea agreement

“expressly uses a Guidelines sentencing range applicable to the charged offense to

establish the term of imprisonment, and that range is subsequently lowered by the

United States Sentencing Commission, the term of imprisonment is ‘based on’ the

range employed and the defendant is eligible for sentence reduction under

§ 3582(c)(2).” 

by the rule of our prior precedent “unless and until it is

overruled or undermined to the point of abrogation by the Supreme Court or by

this [C]ourt sitting en banc.” United States v. Archer, 

, 1352 (11th


       1
                See Marks v. United States, 

, 193, 

, 993 (1977) (ruling
that, in a fragmented decision, “the holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the narrowest grounds”).

                                                4
              Case: 12-10665       Date Filed: 07/30/2012    Page: 5 of 5

Cir. 2008). “While an intervening decision of the Supreme Court can overrule the

decision of a prior panel of our court, the Supreme Court decision must be clearly

on point.” 

disagree with Butler’s contention that Freeman abrogated Moore.

Freeman has nothing to do with how retroactive amendments affect career

offenders. Freeman was decided in the context of a Rule 11(c)(1)(C) guilty plea,

which allows the prosecutor and defendant to reach a plea bargain specifying a

particular term of imprisonment. In Freeman, the Court held that because such an

agreement might be expressly based on a guideline range, the resulting sentence

could be affected by a retroactive amendment. The career offender guidelines, by

contrast, are based on the statutory maximum sentence for the offense, see 28

U.S.C. § 994(h), and a career offender’s sentence is based on that statute.

Freeman is not “clearly on point” and therefore did not abrogate Moore. See

.

      Here, the district court properly denied Butler’s 18 U.S.C. § 3582(c)(2)

motion because it is undisputed that the retroactive application of Amendment 750

would not lower his guideline range.

      AFFIRMED.2

      2
             Butler’s request for oral argument is DENIED.

                                            5