FERNANDEZ, Circuit Judge:
Deon Andre Charles, a federal prisoner serving a 204-month sentence, appeals the district court's denial of his motion for a reduction of sentence. See 18 U.S.C. § 3582(c)(2). He contends that he is eligible for a sentence reduction because of the Fair Sentencing Act of 2010 ("FSA"), Pub.L. No. 111-220, 124 Stat. 2372, and United States Sentencing Guidelines ("Guidelines") Amendment 750.
On July 6, 2007, pursuant to a plea agreement, Charles entered a guilty plea
At sentencing the district court held that Charles was a career offender. See USSG § 4B1.1(a) (Nov. 2007) ("Career Offender Guideline"). As a result, it determined that Charles's base offense level under the Career Offender Guideline was 37, based on the statutory maximum sentence of life imprisonment under 21 U.S.C. § 841. After a three-level reduction for acceptance of responsibility, the court held that Charles's total offense level was 34. As a career offender his criminal history category was VI. USSG § 4B1.1(b). After considering the relevant factors under 18 U.S.C. § 3553(a), the court sentenced Charles as a career offender to a below-Guidelines term of 204 months of imprisonment on count two and 120 months on count one, to be served concurrently.
Charles subsequently filed a notice of appeal and challenged his sentence. He argued that the district court had erred in finding that he was a career offender. On September 9, 2009, we affirmed his sentence and held that "the district court did not commit plain error in determining that Charles is a career offender under § 4B1.1." United States v. Charles, 581 F.3d 927, 936 (9th Cir.2009).
On February 17, 2012, Charles filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). He argued that, because the FSA reduced the maximum penalty for the quantity of crack cocaine under 21 U.S.C. § 841 from life imprisonment to 40 years, his career offender base offense level under USSG § 4B1.1 should also be reduced. The district court held that Charles was ineligible for a sentence reduction because he was sentenced "based on the career offender guideline range provided by U.S.S.G. § 4B1.1 and not the range dictated by U.S.S.G. § 2D1.1 related to crack cocaine offenses." This timely appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review de novo whether a district court has jurisdiction to reduce a sentence under 18 U.S.C. § 3582. United States v. Wesson, 583 F.3d 728, 730 (9th Cir.2009).
Charles contends that he is eligible for a reduction of his sentence either because the FSA requires a reduction or because of retroactive changes made to the Guidelines.
Charles suggests that the FSA itself mandates a reduction in his sentence. He is incorrect.
We have previously held that the FSA does not express an intent that its ameliorative provisions apply retroactively to defendants who were sentenced before its effective date — August 3, 2010. See United States v. Augustine, 712 F.3d 1290, 1292-95 (9th Cir.), cert. denied, ___ U.S. ___, 134 S.Ct. 297, 187 L.Ed.2d 213 (2013); United States v. Sykes, 658 F.3d 1140, 1148 (9th Cir.2011); United States v. Baptist, 646 F.3d 1225, 1227-29 (9th Cir. 2011) (per curiam); see also Dorsey v. United States, ___ U.S. ___, ___, 132 S.Ct. 2321, 2335, 183 L.Ed.2d 250 (2012). Other circuit courts of appeals have reached the same conclusion. See, e.g.,
Charles contends that he is eligible for a reduction because Amendment 750, which was made retroactive in part by Guideline Amendment 759,
We have previously held that retroactive amendments regarding sentences under the drug guidelines do not affect individuals who were sentenced as career offenders because, as we said "[t]he two sentencing schemes are mutually exclusive." Wesson, 583 F.3d at 731. Similarly, we have held that the retroactive
Other courts of appeals have reached that conclusion. See United States v. Riley, 726 F.3d 756, 758-59 (6th Cir.2013); Hodge, 721 F.3d at 1280-81; Reeves, 717 F.3d at 650-51; Berry, 701 F.3d at 376-77; Curet, 670 F.3d at 309-10; Griffin, 652 F.3d at 803. As the Tenth Circuit Court of Appeals said:
We now join the other courts of appeals and hold what is at least implied in our prior published dispositions and made explicit in our numerous unpublished dispositions: Amendment 750 does not apply to or help defendants who were sentenced as career offenders pursuant to USSG § 4B1.1. Thus, Charles is not eligible to be considered for a sentence reduction.
Because Charles was sentenced before August 3, 2010, the FSA does not affect his sentence. Because he was sentenced as a career offender (USSG § 4B1.1), the retroactive amendments to the drug guideline (USSG § 2D1.1) do not qualify him for sentence reduction consideration. See 18 U.S.C. § 3582(c)(2); USSG § 1B1.10.