Case: 12-12673   Date Filed: 08/15/2013   Page: 1 of 8


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 12-12673
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 8:03-cr-00171-EAK-EAJ-2



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                 versus

ROMAINE JEROME COFFIE,

                                                        Defendant-Appellant.


                     ________________________

                           No. 12-13382
                       Non-Argument Calendar
                     ________________________

             D.C. Docket No. 3:06-cr-00312-VMC-TEM-1



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,
          Case: 12-12673   Date Filed: 08/15/2013   Page: 2 of 8




                                 versus

CARLOUS GRISSETT,

                                                        Defendant-Appellant.


                     ________________________

                           No. 12-13664
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 6:08-cr-00273-MSS-GJK-1



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                 versus

ALVIN CLEVE HAZLEY,
a.k.a. Fudge,

                                                        Defendant-Appellant.


                     ________________________

                           No. 12-14036
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 3:03-cr-00348-TJC-MCR-1




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UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                 versus

WAYNE ANTHONY MOORE,

                                                        Defendant-Appellant.


                     ________________________

                           No. 12-14848
                       Non-Argument Calendar
                     ________________________

             D.C. Docket No. 8:06-cr-00443-RAL-MAP-1



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                 versus

JOSEPH L. STRICKLAND,

                                                        Defendant-Appellant.

                     ________________________

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

                           (August 15, 2013)




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Before TJOFLAT, MARCUS, and JORDAN, Circuit Judges.

PER CURIAM:

      Each of these consolidated appeals challenges the District Court’s denial of

the defendant’s motion for a sentence reduction, pursuant to 18 U.S.C.

§ 3582(c)(2). The District Court denied the defendant’s motion on the ground that

he was not eligible for a sentence reduction because he was sentenced as a career

offender, despite being sentenced below the applicable Guidelines sentence range

for career offenders due to downward variances or departures. Each defendant

argues that the court erred in denying his § 3582(c)(2) motion because, after the

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

, 

 (2011), a career offender who received a departure or

variance and was sentenced below the career offender sentence range was eligible

for a § 3582(c)(2) sentence reduction under Amendment 750 to the Sentencing

Guidelines.

      A district court may only reduce a defendant’s term of imprisonment under

§ 3582(c)(2) if his sentence was based upon a sentence range the Sentencing

Commission subsequently lowered and if the reduction is consistent with the

Sentencing Commission’s applicable policy statements. 18 U.S.C. § 3582(c)(2).

A reduction is not consistent with those policy statements if, due to the operation

of another guideline provision, it does not have the effect of lowering the


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defendant’s sentence range. U.S.S.G. § 1B1.10(a)(2)(B); U.S.S.G. § 1B1.10,

comment. (n.1(A)). The defendant’s “applicable guideline range” is the guideline

range that was in effect before any departures or variances were applied. U.S.S.G.

§ 1B1.10, comment. (n.1(A)). The application of § 1B1.10 does not violate the Ex

Post Facto Clause so long as the effect of the post-conduct Guidelines amendment

does not increase the defendant’s punishment beyond what it would have been

without the amendment. United States v. Colon, 

, 1258-59 (11th

Cir. 2013).

      Amendment 750 reduced the offense levels associated with various amounts

of crack cocaine found in the Drug Quantity Table in U.S.S.G. § 2D1.1(c).

U.S.S.G. App. C, Amend. 750, Pt. A, cross referencing U.S.S.G. App. C, Amend.

748 (2011). Amendment 750 did not make any changes to U.S.S.G. § 4B1.1, the

career offender guideline. See U.S.S.G. App. C, Amend. 750.

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

determined under § 4B1.1, not under the Drug Quantity Table set forth in

§ 2D1.1(c). U.S.S.G. § 4B1.1; United States v. Moore, 

, 1327 (11th

Cir. 2008). In Moore, we faced the question of whether defendants who were

sentenced as career offenders under § 4B1.1 were eligible for § 3582(c)(2) relief in

light of Amendment 706, which, like Amendment 750, lowered the § 2D1.1(c)

base offense levels for certain quantities of crack cocaine. 541 F.3d at 1325. We


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held that the defendants did not qualify for § 3582(c)(2) relief because Amendment

706 had no effect on their Guidelines sentence ranges, which were calculated under

§ 4B1.1. Id. at 1327-28, 1330. Further, where the court granted a downward

departure based on one defendant’s substantial assistance, there was no basis to

conclude that Amendment 706 lowered the defendant’s sentence range. Id. at

1330.

        In Freeman, the Supreme Court considered whether a defendant could be

eligible for a sentence reduction where he entered into a Fed. R. Crim. P.

11(c)(1)(C) plea agreement that included a recommended sentence or guideline

sentence range. Freeman, 564 U.S. at —, 131 S.Ct. at 2690. In United States v.

Lawson, 

, 1321 (11th Cir. 2012), cert. denied, 

 (2012),

we specifically addressed Freeman’s impact on Moore and held that Moore

remained binding precedent. We concluded that Freeman was not “clearly on

point” as to the issue addressed in Moore regarding the eligibility of career

offenders for § 3582(c)(2) relief based on the retroactive lowering of crack cocaine

base offense levels. Id. (internal quotation marks omitted). Specifically, Freeman

did not address “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.” Id. Thus, the offense level and guideline sentence

range for career offenders were not lowered by Amendment 750. Id.


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      Based on our precedent, the District Court did not err in denying the

defendants’ § 3582(c)(2) motions. The defendants’ total offense levels and

Guidelines sentence ranges were not based on the drug quantity offense levels in

§ 2D1.1, but instead were based on the career offender offense levels in § 4B1.1.

Because the sentence ranges were based on the career offender guidelines, not on

the drug quantity guidelines, Amendment 750 did not lower the sentencing ranges

upon which the defendants’ sentences were based. See Lawson, 686 F.3d at 1321;

Moore, 541 F.3d at 1327-30.

      The defendants’ argument that the Supreme Court’s decision in Freeman

abrogated our decision in Moore is explicitly foreclosed by our decision in

Lawson. See Lawson, 686 F.3d at 1321. Moreover, under U.S.S.G. § 1B1.10 and

its commentary, a reduction is only authorized where an amendment has the effect

of lowering the applicable Guidelines sentence range, which is determined before

any departure or variance. U.S.S.G. § 1B1.10(a)(2)(B); U.S.S.G. § 1B1.10,

comment. (n.1(A)). Thus, the defendants applicable sentence ranges for the

purpose of determining their eligibility for a sentence reduction are the ranges

produced by applying the career offender sentence range without regard to any

downward departure or variance, and those ranges were not lowered by

Amendment 750.




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      Finally, the defendants’ arguments regarding the definition of “applicable

guideline range” in the 2011 guidelines commentary are also unavailing. Section

3582(c)(2) explicitly incorporates applicable policy statements issued by the

Sentencing Commission, and we have previously rejected the argument that the

amendments to § 1B1.10 violated the Ex Post Facto Clause. See 18 U.S.C.

§ 3582(c)(2); Colon, 707 F.3d at 1258-59. Accordingly, the district court did not

err in denying the defendants’ motions for a sentence reduction because they were

sentenced as career offenders, and we affirm.

      AFFIRMED.




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