Case: 12-16079   Date Filed: 10/23/2013   Page: 1 of 8


                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-16079
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 5:01-cr-00069-CAR-2


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

JOHN WHITE,

                                                          Defendant-Appellant.

                       ________________________

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

                             (October 23, 2013)

Before TJOFLAT, PRYOR, and FAY, Circuit Judges.

PER CURIAM:
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      John White, proceeding through counsel, appeals the district court’s denial

of his motion for a sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2) and

Amendment 750. We affirm.

                                         I.

      White pled guilty to distribution of more than 50 grams of cocaine base

(“crack-cocaine”) and was sentenced for the offense in November 2004. The

presentence investigation report (“PSI”) calculated White’s base offense level

under U.S.S.G. § 2D1.1(c). However, because White was a career offender, his

guideline range was calculated pursuant to U.S.S.G. § 4B1.1. After receiving a

departure for substantial assistance, he was sentenced to 160 months of

imprisonment. In 2011, White filed a § 3582(c) motion based on Amendment 750

and the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372.

After the government responded, the district court determined White was not

eligible for a § 3582(c) reduction based on Amendment 750, because his sentence

was based on § 4B1.1, not § 2D1.1, which Amendment 750 amended. Further, the

FSA was not applicable because White was sentenced before the FSA’s effective

date. Thus, the court determined he was not entitled to a sentence reduction.

                                        II.

      On appeal, White argues he was entitled to a sentence reduction

notwithstanding his career offender status. Citing to Freeman v. United States, 564


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___, 

, 

 (2011), he argues he was sentenced

based on § 2D1.1(c), which was amended by Amendment 750, because § 2D1.1(c)

remained a point of reference throughout the process of calculating his guideline

range and determining whether any departure or variance was warranted. White

argues we should not rely on our decision in United States v. Lawson, 

 (11th Cir.), cert. denied, 

 (2012), in the instant case because

that decision relies unduly on Justice Sotomayor’s concurrence in Freeman, which

was not the controlling opinion in the case, does not specifically address career

offenders, and lacks any in-depth analysis of the FSA’s background. White further

argues that he was entitled to be resentenced under the FSA, which decreased the

mandatory minimums with respect to crack-cocaine offenses. In his reply brief,

White also argues that United States v. Berry, 

 (11th Cir. 2012), and

United States v. Hippolyte, 

 (11th Cir. 2013), petition for cert. filed,

No. 12-10828 (U.S. June 12, 2013), are distinguishable from his case.

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

its authority under § 3582(c)(2). Lawson, 686 F.3d at 1319. 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. § 3582(c)(2); U.S.S.G.

§ 1B1.10(a)(1).


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      In United States v. Moore, we held that a career offender is not entitled to

§ 3582(c)(2) relief where a retroactive guideline amendment reduces his base

offense level, but does not alter the sentencing range upon which his sentence was

based. 

, 1330 (11th Cir. 2008). In Lawson, we rejected a career

offender’s argument that, in light of the Supreme Court’s decision in Freeman, the

holding of Moore was overruled, such that he was entitled to a sentence reduction

based on § 3582(c)(2) and Amendment 750, notwithstanding his sentence being

based on the career offender guideline. Lawson, 686 F.3d at 1319-21. In

Freeman, the question before the Supreme Court was whether defendants who

entered into Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreements were

eligible for § 3582(c)(2) relief. Freeman, 564 U.S. at ____, 131 S. Ct. at 2690.

We determined that neither the plurality opinion nor Justice Sotomayor’s

concurrence in Freeman addressed 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. Lawson, 686 F.3d at 1321. Thus, we

held Freeman did not overrule Moore’s holding that a career offender was not

entitled to § 3582(c)(2) relief where his guideline range was not lowered by a

retroactive amendment because Freeman was not “clearly on point” to the issue

that arose in Moore. Id. Accordingly, we held Lawson, a career offender, was not




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entitled to relief based on Amendment 750 and § 3582(c)(2), as his guideline range

based on § 4B1.1 was not reduced by Amendment 750. Id.

      In Berry, we addressed the applicability of Amendment 750 and the FSA in

the context of a § 3582(c)(2) proceeding. 701 F.3d at 376-77. Berry was

convicted of a crack-cocaine offense and sentenced in 2002, and his initial

guideline range was 360 months to life imprisonment, which was based on his

status as a career offender under § 4B1.1(b), not on the drug quantity tables in

§ 2D1.1. Id. at 376. On appeal, we held that the district court did not have the

authority to grant Berry’s § 3582(c)(2) motion because Amendment 750 had no

effect on Berry’s initial guideline range of 360 months to life imprisonment or his

guideline sentence of life imprisonment. Id. at 377. In addition, we rejected

Berry’s argument that he was eligible for a § 3582(c)(2) reduction under the FSA,

determining the FSA was not an amendment to the Guidelines by the Sentencing

Commission, but rather a statutory change by Congress. Id. Thus, it did not serve

as a basis for a § 3582(c)(2) sentence reduction in Berry’s case. Id. Even

assuming that Berry could bring his FSA claim in a § 3582(c)(2) motion, we

continued, his claim still failed because he was convicted and sentenced in 2002

and the FSA did not apply retroactively to his 2002 sentences. Id. We pointed out

that the general savings clause in 1 U.S.C. § 109 states the repeal of a statute shall

not have the effect of releasing or extinguishing any penalty incurred under that


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statute unless the repealing act expressly so provides. Id. We then agreed with

“every other circuit to address the issue” that there was no evidence that Congress

intended the FSA to apply to defendants who had been sentenced before the

August 3, 2010, date of the FSA’s enactment. Id. Finally, we distinguished the

Supreme Court’s decision in Dorsey v. United States, 

___, 

, 

 (2012), noting that Dorsey did not suggest the FSA’s new

mandatory minimums should apply to defendants, like Berry, who were sentenced

before the FSA’s effective date. Id. at 377-78.

      In Hippolyte, we rejected Hippolyte’s arguments that (1) Congress intended

for the FSA to apply to drug-crime sentence reductions under § 3582(c)(2) for the

same reasons articulated in Dorsey; and (2) it would be inconsistent to apply the

more lenient sentencing ranges of Amendment 750, but keep the harsh pre-FSA

mandatory minimums in a § 3582(c)(2) proceeding involving a defendant

sentenced before the FSA’s enactment. 712 F.3d at 539-40, 542. We determined

that Berry was indistinguishable from Hippolyte’s case, and thus, the FSA’s

reduced statutory penalties did not apply to his case. Id. at 542.

      In the instant case, the district court correctly denied White’s § 3582(c)(2)

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

Amendment 750 reduced the base offense levels in § 2D1.1, not in § 4B1.1. See

U.S.S.G. App. C, Amend. 750; U.S.S.G. App. C, Amend. 748; see also Lawson,


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686 F.3d at 1321. White was initially assigned a base offense level under § 2D1.1,

but his total offense level and guideline range were based on § 4B1.1, not § 2D1.1,

because he was a career offender. Thus, Amendment 750 did not alter the

sentencing range upon which White’s sentence was based. See Lawson, 686 F.3d

at 1321. As Freeman did not abrogate our prior holding—that defendants

sentenced as career offenders, pursuant to § 4B1.1, were not entitled to

§ 3582(c)(2) sentence reductions where their guideline ranges were unaffected by a

retroactive amendment—the district court properly determined that § 3582(c)(2)

did not authorize a reduction in White’s sentence. Id. at 1320-21.

      Although White argues that he is entitled to a § 3582(c)(2) sentence

reduction based on the FSA, Berry forecloses White’s argument. As we stated in

Berry, the FSA is not a guideline amendment, and thus, White is not eligible for a

§ 3582(c)(2) sentence reduction based on the FSA. See Berry, 701 F.3d at 376-77.

Here, White appears to argue that Berry is distinguishable because he is seeking to

reduce his sentence based both on Amendment 750 and the FSA. However, as

discussed above, Amendment 750 has no application here because it does not

lower White’s guideline range. Further, although White argues that the FSA

applies retroactively in a § 3582(c)(2) proceeding for the same reasons articulated

in Dorsey, we have previously rejected such an argument in Berry and Hippolyte,

as nothing in Dorsey suggests that the FSA’s new mandatory minimums should


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

id. at 377-78; Hippolyte, 712 F.3d at 539-40, 542. Thus, the FSA does not apply to

White’s case, and he has not shown that he is entitled to a § 3582(c)(2) sentence

reduction because he has not shown that an amendment to the Guidelines has the

effect of reducing his sentence. Accordingly, the district court did not err in

denying White’s § 3582(c)(2) motion.

      AFFIRMED.




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