Case: 12-16055    Date Filed: 09/03/2013   Page: 1 of 7


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-16055
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 3:99-cr-00003-CAR-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

MIKE FULTON,

                                                              Defendant-Appellant.

                          ________________________

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

                               (September 3, 2013)

Before TJOFLAT, MARCUS and MARTIN, Circuit Judges.

PER CURIAM:

      Mike Fulton, a federal prisoner proceeding pro se, appeals the district court’s

denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction, pursuant to
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Amendment 750 to the Sentencing Guidelines. On appeal, he argues that: (1) he is

entitled to a § 3582(c)(2) sentence reduction because, notwithstanding his status as

a career offender, his total sentence was based on the crack-cocaine guideline, not

the career-offender guideline; and (2) he is entitled to be resentenced under the Fair

Sentencing Act of 2010 (“FSA”), notwithstanding the fact that he was originally

sentenced prior to the Act’s enactment on August 3, 2010. After thorough review,

we affirm.

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

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

, 1319

(11th Cir.), cert. denied, 

(2012). Section 3582(c)(2) provides that a

court may reduce a defendant’s sentence where the defendant is 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); U.S.S.G. §

1B1.10(a)(1). A sentence reduction is not authorized under § 3582(c)(2) where it

does not have the effect of lowering a defendant’s “applicable guideline range.”

U.S.S.G. § 1B1.10(a)(2)(B).

      Before the FSA was enacted on August 3, 2010, distribution of 5 to 50

grams of crack cocaine triggered the application of a statutory mandatory

minimum sentence of 5 years’ imprisonment and a maximum sentence of 40 years’

imprisonment. 21 U.S.C. § 841(b)(1)(B)(iii) (2009); see United States v. Gomes,


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, 1346 (11th Cir. 2010). The FSA changed the crack-to-powder-

cocaine ratio from 100-to-1 to about 18-to-1. 

. Under the

FSA, distribution of less than 28 grams of cocaine base carried no statutory

minimum and a statutory maximum of 20 years’ imprisonment. 21 U.S.C. §

841(b)(1)(C). In Dorsey v. United States, the Supreme Court held that the FSA’s

reduced statutory mandatory minimums apply to defendants who committed crack

cocaine offenses before August 3, 2010, but were sentenced after the effective date

of the FSA. 567 U.S. ___, 

, 2326 (2012). Amendment 750 to the

Sentencing Guidelines, made retroactively applicable by Amendment 759, made

permanent an amendment revising the crack cocaine quantity tables listed in §

2D1.1(c). See U.S.S.G. App. C, Amend. 750, Reason for Amend.; U.S.S.G. App.

C, Amend. 748, Reason for Amend.; U.S.S.G. App. C, Amend. 759.

      The offense level for a career offender is determined by the career-offender

guideline, § 4B1.1(b), rather than the drug quantity tables in § 2D1.1.        See

U.S.S.G. § 4B1.1(b). Where a defendant is sentenced as a career offender under §

4B1.1, his base offense level under § 2D1.1 plays no role in the calculation of his

guideline range. 

. Accordingly, the district court is

unauthorized to reduce the sentence of a defendant who was sentenced as a career

offender, under § 4B1.1, based on a retroactive amendment to § 2D1.1, because




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such an amendment does not have the effect of lowering a defendant’s guideline

range. Id.; United States v. Moore, 

, 1327 (11th Cir. 2008).

      In Freeman v. United States, the Supreme Court held, in a plurality opinion,

that a defendant who entered into a Rule 11(c)(1)(C) plea agreement, which

includes a binding sentencing recommendation, could, in certain circumstances,

still qualify for a reduced sentence under § 3582(c)(2) if the sentence or sentencing

range in the plea agreement was “based on” the amended guideline range. 564

U.S. ___, 

, 2690 (2011). We later determined that neither the

plurality opinion in Freeman nor Justice Sotomayor’s concurrence addressed

defendants assigned a base offense level under one guideline section, but

ultimately assigned a total offense level and guideline range under § 4B1.1.

. Thus, Freeman did not overrule our prior holding that a

career offender was not entitled to § 3582(c)(2) relief where his guideline range

was not lowered by a retroactive amendment. 

a career offender

is not entitled to relief based on Amendment 750 and § 3582(c)(2), since his

guideline range is based on § 4B1.1 and is not reduced by Amendment 750. 

v. Berry, 

, 377 (11th Cir. 2012), we held that

the district court did not have the authority to grant the defendant, a career

offender, a sentence reduction under § 3582(c)(2) because Amendment 750 had no

effect on his initial guideline range or his guideline sentence. We also rejected the


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argument that the defendant was eligible for a § 3582(c)(2) reduction under the

FSA, concluding that the Act was not a guidelines amendment by the Sentencing

Commission, but rather a statutory change by Congress. 

that the

FSA could not serve as a basis for a § 3582(c)(2) sentence reduction. 

that even if the defendant could bring a FSA claim in a § 3582(c)(2)

motion, his claim would still fail because the FSA did not apply retroactively to the

defendant’s 2002 sentences. 

the Supreme Court’s

decision in Dorsey, because it did not suggest that the FSA’s new mandatory

minimums should apply to defendants originally sentenced before the FSA’s

effective date. 

United States v. Hippolyte, 

, 542 (11th Cir.), petition for

cert. filed, No. 12-10828 (June 12, 2013), we reaffirmed that, in a § 3582(c)(2)

proceeding, the FSA does not apply retroactively to a defendant sentenced before

the Act’s enactment.      We also reaffirmed our conclusion, in Berry, that the

Supreme Court’s decision in Dorsey did not suggest that the FSA should apply to

defendants who were sentenced long before the FSA’s effective date. 

court correctly denied Fulton’s § 3582(c)(2) motion

because his guideline range was not lowered by Amendment 750. Fulton was

initially assigned a base offense level under U.S.S.G. § 2D1.1, but his total offense

level and resulting guideline range were based on § 4B1.1, not § 2D1.1, because he


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was a career offender. Therefore, Amendment 750 did not alter the sentencing

range upon which Fulton’s sentence was based. Moreover, we held in Lawson that

neither the plurality opinion nor Justice Sotomayor’s concurrence in Freeman

applies where a defendant was assigned a base offense level under one guideline

section, but was ultimately sentenced as a career offender under § 4B1.1. We

further held that Freeman did not abrogate our holding in Moore that a defendant

sentenced as a career offender, under § 4B1.1, is not entitled to a § 3582(c)(2)

sentence reduction where his guideline range was unaffected by a retroactive

amendment. Accordingly, the district court correctly determined that § 3582(c)(2)

did not authorize a reduction of Fulton’s sentence.

      Additionally, Berry and Hippolyte foreclose Fulton’s argument that he is

eligible for a § 3582(c)(2) sentence reduction based on the FSA’s lower mandatory

minimum penalties. As we held in Berry, the FSA is not an amendment to the

Guidelines by the Sentencing Commission, and, therefore, it cannot serve as a

basis for a § 3582(c)(2) sentence reduction. Moreover, even assuming that Fulton

could raise his FSA claim in a § 3582(c)(2) motion, his claim fails because he was

originally sentenced in 2001. Since his sentence was imposed before the effective

date of the FSA -- August 3, 2010 -- he cannot benefit from the FSA’s lower

statutory mandatory minimum provisions. Finally, contrary to Fulton’s assertion




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on appeal, Dorsey did not suggest that the FSA’s new statutory penalties should

apply to defendants who were sentenced before the FSA’s effective date.

      AFFIRMED.




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