Case: 12-16180     Date Filed: 09/17/2013    Page: 1 of 8


                                                               [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-16180
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 7:00-cr-00004-HL-2

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                       versus

TAJRICK CONAWAY,

                                                               Defendant-Appellant.

                           ________________________

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

                               (September 17, 2013)

Before TJOFLAT, WILSOLN and ANDERSON, Circuit Judges.

PER CURIAM:

      In 2000, Tajrick Conaway pled guilty to two counts of an indictment: Count

1, possession with intent to distribute cocaine base, in violation of 21 U.S.C. §
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841(a)(1); Count 2, possession of marijuana, in violation of 21 U.S.C. § 844(a). At

sentencing, the District Court treated Conaway as a “career offender” under

U.S.S.G. § 4B1.1, and imposed concurrent prison sentences of 292 months on

Count 11 and 12 months on Count 2. In March 2008, Conaway moved the District

Court to reduce his Count 1 sentence pursuant to 18 U.S.C. § 3582(c)(2), under

Amendment 706 to the Sentencing Guidelines. The court denied his motion

because he had been sentenced as a career offender on Count 1. He appeals the

ruling.

       On appeal, Conaway argues that he was entitled to a sentence reduction

despite the fact that he was sentenced as a career offender. He acknowledges our

holding in United States v. Moore, 

 (11th Cir. 2008), that career

offenders were not eligible for sentence reductions under analogous Amendment

706 because their sentences were “based on” their career-offender status, but

asserts that the Supreme Court’s decision in Freeman v. United States, 

___, 

, 

 (2011), allows for the reduction of a

sentence that is in any way based on a subsequently amended Guidelines sentence

range. In his case, even though the court selected the career-offender offense level

and not the offense level for cocaine-base offenses, U.S.S.G. § 2D1,1, he contends

that his resulting sentence was based on the base offense level for cocaine base

       1
        The Count 1 sentence was at the low end of the Guidelines sentence range of 292 to
365 months.
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offenses because 18 U.S.C. § 3553(a) required the court to consider the offense

level for cocaine base offenses. He asks us to reconsider our previous

determination in United States v. Lawson, 

 (11th Cir. 2012),

contending that Justice Sotomayor’s narrow concurrence is the controlling part of

the Freeman decision. Further, he argues that he was entitled to be resentenced

directly under the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111–220, 124

Stat. 237 (2010), which, he says, reduced his statutory sentence range of 5-to-40-

years to 0-to-20-years and affected his sentence range as a career-offender.

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

authority under 18 U.S.C. § 3582(c)(2), and reviews the denial of a § 3582(c)(2)

motion for an abuse of discretion. United States v. Webb, 

, 792 (11th

Cir. 2009).

      A district court may modify a sentence if the defendant “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). A § 3582(c)(2)

sentence modification “does not constitute a de novo resentencing.” United States

v. Bravo, 

, 781 (11th Cir. 2000). In addressing whether a defendant is

eligible for a § 3582(c)(2) reduction, a district court is to consider only the effect of

the applicable Guidelines amendment, leaving “all original sentencing

determinations . . . unchanged.” Id. at 781-82 (emphasis in original). As such,


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even if a retroactive amendment would alter a defendant’s offense level, he will be

ineligible for § 3582(c)(2) relief if the amendment would “not have the effect of

lowering [his] 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, comment. (n.1(A)).

      To obtain a reduction in a term of imprisonment based on an amendment to

the Sentencing Guidelines, the relevant amendment must be listed in § 1B1.10(c).

Id. § 1B1.10(a)(1). Because they are listed in § 1B1.10(c), Parts A and C of

Amendment 750 to the Sentencing Guidelines may serve as the basis for a sentence

reduction. Id. § 1B1.10(c). Part A of Amendment 750 amended § 2D1.1 by

revising the Drug Quantity Table in § 2D1.1(c), and reducing offense levels

associated with various amounts of crack cocaine. 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 § 4B1.1, the career-offender guideline. See U.S.S.G.

App. C, Amend. 750. Amendment 750 was made retroactive by Amendment 759,

effective November 1, 2011. See id., Amend. 759.

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

determined under § 4B1.1, not the drug quantities set forth in § 2D1.1. U.S.S.G.

§ 4B1.1. In Moore, a pre-FSA case, we faced the question of whether defendants

who were sentenced as career offenders under § 4B1.1 were eligible for


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§ 3582(c)(2) relief in light of Amendment 706, which, like Amendment 750, had

lowered the base offense levels for certain quantities of crack cocaine under

§ 2D1.1(c). Moore, 541 F.3d at 1325-27. We held that the defendants did not

qualify for § 3582(c)(2) relief because Amendment 706 had no effect on their

guideline ranges, which were calculated under § 4B1.1. Id. at 1327-30.

      In Freeman, the Supreme Court decided a case involving a plea agreement

under Federal Rule of Criminal Procedure 11(c)(1)(C), in which the defendant

entered a plea agreement that recommended a particular sentence. Freeman, 

at ___, 131 S.Ct. at 2690. A four-justice plurality concluded that Ҥ

3582(c)(2) modification proceedings should be available to permit the district court

to revisit a prior sentence to whatever extent the sentencing range in question was a

relevant part of the analytic framework the judge used to determine the sentence or

to approve the agreement.” Id. at ___, 131 S.Ct. at 2692-93. In a concurrence,

Justice Sotomayor concluded that sentences imposed pursuant to a

Rule 11(c)(1)(C) plea agreement are based on the plea agreement itself and not the

applicable Guidelines sentence range. Id. at ___, 131 S.Ct. at 2696. However,

Justice Sotomayor concluded that “when a [Rule 11(c)(1)(C)] agreement expressly

uses a Guidelines sentencing range to establish the term of imprisonment, and that

range is subsequently lowered by the Commission, the defendant is eligible for

sentence reduction under § 3582(c)(2).” Id. at __, 131 S.Ct. at 2698.


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      In Lawson, we held that the offense level and Guidelines sentence range for

career offenders were not lowered by Amendment 750. Lawson, 686 F.3d at 1321.

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

remained binding precedent. Id. We stated that, “[u]nder Marks[ v. United States,

, 

, 

 (1977)], Justice Sotomayor’s

concurring opinion can be viewed as the holding in Freeman,” but we determined

that “even if the plurality opinion contained the holding, Freeman would not

overrule Moore.” Id. at 1321 n.2. 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. at 1321 (quotation omitted).

      On August 3, 2010, Congress enacted the FSA, which increased the amounts

of crack cocaine required to trigger the higher statutory-maximum sentences and

the mandatory minimum sentences in 21 U.S.C. § 841(b)(1). Pub. L. No. 111-120,

124 Stat. 2372 (2010). Under the FSA, the 10-year mandatory minimum and the

life statutory maximum apply to offenses involving 280 grams or more of crack

cocaine, and the 5-year mandatory minimum and the 40-year statutory maximum

apply to offenses involving 28 grams or more of crack cocaine, respectively.

21 U.S.C. § 841(b)(1)(A)(iii), (b)(1)(B)(iii) (2011).




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      The Supreme Court has held that the FSA’s lower statutory penalties apply

to a defendant who committed his offense before, but was sentenced after, the

FSA’s enactment. Dorsey v. United States, 

___, ___, 

,

2326, 

 (2012). The Court observed that “application of the new

minimums to pre-Act offenders sentenced after [the FSA’s enactment] will create a

new set of disparities,” but explained that “in federal sentencing the ordinary

practice is to apply new penalties to defendants not yet sentenced, while

withholding that change from defendants already sentenced.” Id. at ___, 132 S.Ct.

at 2335. Therefore, the Court concluded, the “new disparity” between “those

pre-Act offenders already sentenced and those not yet sentenced as of [the FSA’s

enactment]” was insufficient reason to exclude the yet-to-be-sentenced offenders

from the lower statutory penalties. Id.

       Dorsey “carefully confined its application of the FSA to pre-Act offenders

who were sentenced after the Act’s effective date.” United States v. Berry, 

, 378 (11th Cir. 2012). The changes in the FSA to the statutory sentences

provide no foundation for a § 3582(c)(2) motion and do not permit a district court

to reduce the sentence of a defendant sentenced before the FSA’s effective date.

Id. at 377-78.

      Here, the District Court did not err in denying Conaway’s § 3582(c)(2)

motion. Conaway’s claim that Amendment 750’s reduction of the base offense


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levels for cocaine base warranted him a sentence reduction is foreclosed by our

holding in Lawson that Amendment 750 did not lower the Guidelines sentence

range applicable to defendants sentenced as career offenders under § 4B1.1. His

claim that he could be resentenced directly under the FSA lacked merit because the

FSA’s reduced statutory penalties did not apply to defendants, such as he, who

were sentenced before its enactment. Further, the FSA is a statutory amendment

enacted by Congress, not a retroactive guideline amendment by the U.S.

Sentencing Commission, and, thus, cannot serve as the basis for § 3582(c)(2)

relief.


          AFFIRMED.




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