Case: 12-15265    Date Filed: 09/10/2013   Page: 1 of 5




                                                       [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-15265
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 2:06-cr-14001-KMM-2

UNITED STATES OF AMERICA,



                                                               Plaintiff-Appellee,

                                    versus

WILLIE FRANK GRAHAM,

                                                           Defendant-Appellant.

                       ________________________

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

                             (September 10, 2013)

Before WILSON, MARTIN and FAY, Circuit Judges.

PER CURIAM:
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      Willie Graham appeals the district court’s denial of his 18 U.S.C.

§ 3582(c)(2) motion to reduce his 188-month sentence of imprisonment, that the

district court imposed on July 17, 2006, after he pleaded guilty to conspiring to

possess five or more grams of cocaine base with intent to distribute, in violation of

21 U.S.C. § 846, and possessing five or more grams of cocaine base with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1). Holding Graham responsible for

17.43 grams of cocaine base, the district court initially calculated an adjusted

offense level of 26 under U.S.S.G. § 2D1.1. Graham, however, was a career

offender who was subject to a maximum term of 40 years’ imprisonment under

§ 841(b)(1)(B)(iii). Accordingly, he was subject to an offense level of 34 and a

total offense level of 31 after the application of a three-offense-level reduction for

accepting responsibility. When combined with a criminal history category of VI,

this produced a Sentencing Guidelines range of 188 to 235 months’ imprisonment.

      Graham now argues that he is eligible for a sentence reduction in light of

Freeman v. United States, 

(2011), notwithstanding his status as a

career offender, because his sentence was “based upon” § 2D1.1, which was

modified by Amendment 750 to the Guidelines. He further argues that the Fair

Sentencing Act of 2010 (FSA), Pub. L. No. 111–220, 124 Stat. 2372, retroactively

applies to him and that by reducing his statutory-maximum penalty to 20 years’




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imprisonment, the FSA reduces his Guidelines range to 151 to 188 months’

imprisonment.

      We review de novo the scope of the district court’s authority under the

Guidelines. United States v. Moore, 

, 1326 (11th Cir. 2008). A

district court may not reduce a defendant’s term of imprisonment that has been

imposed unless: (1) the sentence was based upon a sentencing range that the

Sentencing Commission subsequently lowered; (2) the district court considers the

18 U.S.C. § 3553(a) factors; and (3) the “reduction is consistent with applicable

policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).

      When determining whether a reduction is warranted, a court should first

determine the Guidelines range that would have applied had the relevant

amendment been in effect at the time of the defendant’s sentencing. See U.S.S.G.

§ 1B1.10(b)(1); United States v. Vautier, 

, 759–60 (11th Cir. 1998).

If the relevant amendment does not have the effect of lowering the defendant’s

applicable Guidelines range, a sentence reduction is inconsistent with the

Guidelines policy statement, and is therefore not authorized by § 3582(c)(2). See

U.S.S.G. § 1B1.10(a)(2)(B). Section 3582(c)(2) does not authorize a sentence

reduction where a relevant Guidelines amendment reduces a defendant’s base

offense level, but, through the operation of another guideline, does not alter the

sentencing range upon which his sentence was based. See U.S.S.G. § 1B1.10, cmt.


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n.1 (A)(ii); 

. Thus, defendants who are sentenced as

career offenders are ineligible for sentence reductions under § 3582(c)(2). See

. Moore remains binding law despite Freeman, regardless

of whether Freeman’s plurality or concurring opinion contained the holding. See

United States v. Lawson, 

, 1321 (11th Cir.) (per curiam), cert.

denied, 

(2012).

      We addressed the FSA’s applicability in the context of § 3582(c)(2)

proceedings in United States v. Berry, 

(11th Cir. 2012) (per curiam).

There, we rejected Berry’s argument that he was eligible for a sentence reduction

under the FSA because the FSA was not a Guidelines amendment promulgated by

the Sentencing Commission, but a statutory amendment by Congress. See 

even assuming that an FSA claim is properly raised in a

§ 3582(c)(2) proceeding, we concluded that Berry’s claim failed because the FSA

did not retroactively apply to defendants who, like Berry, were sentenced prior to

its enactment. See 

district court was not authorized to reduce Graham’s sentence because

he was sentenced as a career offender. Likewise, the FSA does not authorize a

sentence reduction under § 3582(c)(2), and, in any case, it does not retroactively

apply to defendants who, like Graham, were sentenced prior to its enactment.

Accordingly, we affirm.


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AFFIRMED.




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