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                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-16060
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 5:04-cr-00084-CAR-1

UNITED STATES OF AMERICA,



                                                                  Plaintiff-Appellee,

                                      versus

HOSEA M. ALLEN,

                                                             Defendant-Appellant.

                          ________________________

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

                                (March 10, 2014)

Before TJOFLAT, HULL and JORDAN, Circuit Judges.

PER CURIAM:

      Hosea Allen appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2)

motion to reduce his sentence of 262 months’ imprisonment. He contends that that
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district court erred by declining to retroactively apply Amendment 750 to the

United States Sentencing Guidelines and the reduced statutory penalties of the Fair

Sentencing Act of 2010 (“FSA”) to reduce his sentence. For the reasons set forth

below, we affirm the district court's denial of Allen's § 3582(c)(2) motion.


                                          I.

      In February 2005, the government charged Allen with distributing cocaine

base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count One), and distributing

in excess of five grams of cocaine base, in violation of § 841(a)(1), (b)(1)(B)(iii)

(Count Two). After a two-day trial, a jury found Allen guilty of both charges. At

the July 20, 2005, sentencing hearing, the district court held Allen responsible for

26.1 grams of cocaine base and initially calculated an offense level of 28 under

U.S.S.G. § 2D1.1(c). Allen, however, was a career offender, which, per the 2004

career offender table, produced a total offense level of 34 in light of the 40-year

statutory maximum penalty to which he was subject. U.S.S.G. § 4B1.1(2004).

When combined with Allen’s criminal history category of VI, this produced a

Guideline sentence range of 262 to 327 months’ imprisonment. The district court

ultimately imposed a sentence of 240 months’ imprisonment for Count One and

262 months’ imprisonment for Count Two to run concurrently, for a total

imprisonment term of 262 months. Allen moved the district court twice to reduce

his sentence, but the district court denied both motions.

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      On appeal, Allen argues that he is eligible for a sentence reduction under §

3582(c)(2) notwithstanding his status as a career offender, because his sentence

range was “based upon” § 2D1.1, which includes offense levels for crack-cocaine

drug quantities that were lowered by Amendment 750. Allen also argues that he is

entitled to a sentence reduction under the FSA’s reduced statutory mandatory

minimum penalties for crack-cocaine offenses.

                                        II.

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

legal authority under 18 U.S.C. § 3582(c)(2). United States v. Lawson, 

, 1319 (11th Cir. 2012), cert. denied, ––– U.S. ––––, 

, 

(2012). Section 3582(c)(2) of Title 18 of the United States Code

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). When determining whether a reduction is

warranted, a court should first determine the Guideline sentence range that would

have applied had the relevant amendment been in effect at the time of the

defendant’s sentencing. See United States v. Vautier, 

, 759–60 (11th

Cir. 1998); U.S.S.G. § 1B1.10(b)(1). If the relevant amendment does not have the

effect of lowering the defendant’s applicable Guideline sentencing range, a


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sentence reduction is inconsistent with the Guideline’s policy statement, and is,

therefore, not authorized by § 3582(c)(2). U.S.S.G. § 1B1.10(a)(2)(B). In United

States v. Moore, we held that a career offender is not entitled to a reduction of his

sentence under § 3582(c)(2) where a retroactive Guideline amendment reduces his

base offense level but does not alter the Guideline sentence range upon which his

sentence was based. 

, 1330 (11th Cir.2008).1

       Allen, like the defendants in Moore, was sentenced as a career offender. His

Guideline sentence range was therefore based upon and determined by § 4B1.1,

not § 2D1.1. Although the Sentencing Commission lowered the offense levels in

U.S.S.G. § 2D1.1(c) for crack-cocaine drug quantities, it did not lower the sentence

range for career offenders under U.S.S.G. § 4B1.1, which is what set Allen’s

Guideline sentence range. Application of Amendment 750 would therefore not

lower his applicable Guideline sentence range.

       Allen, however, argues that his sentence was based upon § 2D1.1 and thus

he is eligible for a reduction under § 3582(c)(2). He contends that the Supreme

Court's plurality opinion in Freeman v. United States, 564 U.S. ––––, 

, 

(2011), overruled our Moore decision and supports his




1
        The defendants in Moore were eligible to have their base offense levels lowered by the
retroactively applied Amendment 706, but because they were sentenced as career offenders
under U.S.S.G. § 4B1.1, their Guideline sentence range would remain unaffected, thus they were
ineligible for a sentence reduction under § 3582(c)(2).
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contention. Unfortunately for Allen, we have already rejected this argument in

United States v. Lawson, 

, 1319 (11th Cir. 2012).

      In Lawson, the defendant, like Allen, appealed the district court’s denial of

his request for a sentence reduction under § 3582(c)(2), arguing that

notwithstanding being sentenced as a career offender under § 4B1.1, based on the

Supreme Court's decision in Freeman, he was entitled to a sentence reduction

pursuant to Amendment 750 because his sentence was based on § 2D1.1. 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 a § 3582(c)(2) sentence reduction. Freeman, 564 U.S. at 

. “Neither the plurality opinion nor Justice Sotomayor's concurrence

in Freeman addressed defendants who were assigned a base offense level under

one [G]uideline section, but who were ultimately assigned a total offense level and

[G]uideline sentence range under § 4B1.1.” 

. We

therefore concluded that Freeman was not “clearly on point” to the issue that arose

in Moore and thus did not overrule Moore's holding that a career offender was not

entitled to § 3582(c)(2) relief where his Guideline sentence range was not lowered

by a retroactive amendment. 

States v. Kaley, 

,

1255 for the proposition that to overrule a prior opinion of the court, the Supreme

Court decision “must be clearly on point”). Accordingly, we held that Lawson, a


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career offender, was not entitled to relief based on Amendment 750 and §

3582(c)(2), as his Guideline sentence range, which was based on § 4B 1.1, was not

reduced by Amendment 750. 

our decision in Moore and Lawson, Allen is not entitled to a §

3582(c)(2) sentence reduction based on Amendment 750 because Amendment 750

only addressed his base offense level under § 2D1.1, without doing anything to

lower his Guideline sentence range as determined by § 4B1.1.

      Allen also argues that he is eligible for a § 3582(c)(2) reduction from his

minimum penalty of 40-years imprisonment to a minimum penalty of 20-years

imprisonment, based on the FSA, which became effective on August 3, 2010. The

FSA lowered the statutory mandatory minimum penalties for crack cocaine

offenses in 21 U.S.C. § 841(b). See Fair Sentencing Act of 2010, Pub. L. No. 111–

220 § 2(a), 124 Stat. 2372 (2010). According to Allen, Congress intended the FSA

to apply to all sentencing and sentencing-reduction proceedings after the FSA’s

effective date and that the Supreme Court’s justifications in Dorsey v. United

States, 567 U.S. ––––, 

, 

(2012) counsel that the

FSA should apply in § 3582(c)(2) proceedings.

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

proceedings in United States v. Berry, 

(11th Cir. 2012). Berry was

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


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

status as a career offender under § 4B 1.1(b), not on the drug quantity tables in §

2D1 .1(c). 

      In resolving Berry’s appeal, we noted that the FSA is not a Guideline

amendment but a statutory change by Congress, thus it could not serve as a basis

for a § 3582(c)(2) sentence reduction in Berry's case. Moreover, even assuming

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

that his claim still failed because he was convicted and sentenced in 2002 and the

FSA did not apply retroactively to his 2002 sentence. 

out 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. 

noted that the Supreme Court’s decision in Dorsey did not suggest that the

FSA's new mandatory minimums should apply to defendants, like Berry, who were

sentenced before the FSA’s effective date. 

(“Dorsey carefully confined

its application of FSA to pre-Act offenders who were sentenced after the Act’s

effective date”); see also United States v. Hippolyte, 

, 542 (11th Cir.

2013) (reaffirming the conclusion in Berry that Dorsey did not indicate that the

FSA’s new mandatory minimums should apply to defendants sentenced before the

FSA’s effective date).




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      Berry supports the conclusion that the district court did not have the

authority to grant Allen’s § 3582(c)(2) motion. The FSA is not an amendment to

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

for a § 3582(c)(2) sentence reduction in Allen's case. See 

.

And even assuming that Allen could raise his FSA claim in a § 3582(c)(2) motion,

his claim fails because he was sentenced in 2005, before the August 3, 2010,

effective date of the FSA, therefore he cannot benefit from the FSA's lower

statutory mandatory minimum provisions. See 

.

Contrary to Allen's assertion 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. See 

–78; 

.

      In sum, the district court was not authorized to reduce Allen’s sentence

under § 3582(c)(2) 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 Allen, were sentenced prior

to its enactment.

      Accordingly, after a careful and thorough review of the record and the

parties’ briefs, we affirm.

      AFFIRMED.




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