              Case: 12-11355    Date Filed: 08/14/2012   Page: 1 of 6

                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 12-11355
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 9:05-cr-80100-WPD-1


UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                      versus

GEORGE E. SMITH,

                                                             Defendant-Appellant.

                        __________________________

                Appeal from the United States District Court
                      for the Southern District of Florida
                         _________________________
                               (August 14, 2012)

Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

      George E. Smith, proceeding pro se, appeals from the district court’s denial

of his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2).
                 Case: 12-11355       Date Filed: 08/14/2012       Page: 2 of 6

      In 2005, Smith was indicted for possession with intent to distribute 5 grams

or more of crack cocaine within 1000 feet of an elementary school, in violation of

21 U.S.C. §§ 841 and 860(a) (Count 1); possession with intent to distribute

cocaine within 1000 feet of an elementary school, in violation of the same (Count

2); and possession of a firearm in furtherance of a drug-trafficking crime, in

violation of 18 U.S.C. § 924(c)(1)(A) (Count 3). The government filed notice of

its intent to rely on Smith’s prior convictions to seek an enhanced sentence,

pursuant to 21 U.S.C. § 851.

      Following a jury trial, Smith was convicted of possession with intent to

distribute less than 5 grams of crack cocaine within 1000 feet of an elementary

school, a lesser included offense of Count 1, and the Count 2 charge of possession

with intent to distribute powder cocaine within 1000 feet of an elementary school.

He was acquitted of the firearm offense in Count 3.

      At sentencing, the district court determined that Smith’s offense level was

26 based on the amount of drugs involved, but this level was increased to 34 under

U.S.S.G. § 4B1.1 because Smith qualified as a career offender.1 Smith’s status as

a career offender also increased his criminal history category from III to VI, and

placed him in a guideline range of 262 to 327 months’ imprisonment. At Smith’s


      1
          Smith conceded that he qualified as a career offender.

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request, the court departed downward in the criminal history category to level V,

which yielded a guideline range of 235 to 293 months’ imprisonment. The court

sentenced Smith to concurrent terms of 235 months’ imprisonment. This court

affirmed Smith’s convictions and sentences on direct appeal. United States v.

Smith, 209 F. App’x 906 (11th Cir. 2006).

       In 2012, Smith filed the instant motion to correct sentence under 18 U.S.C.

§ 3582(c),2 arguing that Amendment 750 to the sentencing guidelines, which

changed the quantities of crack applicable to the specific offense levels under the

drug quantity tables, entitled him to a lesser sentence. He further asserted that he

was eligible for the reduction because he was not sentenced as a career offender

after the district court had departed downward in his criminal history category. He

requested that he be resentenced in accordance with Amendment 750 and that he

be given consideration for his rehabilitative efforts while incarcerated.

       The district court denied the motion, first finding that Amendment 750 did

not apply to Smith’s case because Smith’s sentence was controlled by his career-

offender status. Alternatively, the court explained that even if the amendment




       2
          This is Smith’s second § 3582(c) motion, and he also filed a motion to vacate sentence,
28 U.S.C. § 2255, before filing the instant motion. Neither Smith’s previous § 3582 (c) motion
nor his § 2255 motion provided him with any relief.

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applied, the court would nevertheless sentence Smith to 235 months’

imprisonment based on the 18 U.S.C. § 3553(a) sentencing factors.

      Smith now appeals, arguing that the Supreme Court’s recent decision in

Freeman v. United States, 564 U.S. ___, 131 S.Ct. 2685 (2011), granted the

district court authority to reduce his sentence in light of Amendment 750 despite

the fact that he was a career offender.

      We review a district court’s decision not to reduce a sentence pursuant to

§ 3582(c)(2) for an abuse of discretion. United States v. Davis, 587 F.3d 1300,

1303 (11th Cir. 2009). But we review sentencing issues not raised before a district

court for plain error. United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315

(11th Cir. 2005). “Plain error occurs if (1) there was error, (2) that was plain,

(3) that affected the defendant’s substantial rights, and (4) that seriously affected

the fairness, integrity, or public reputation of judicial proceedings.” United States

v. Wright, 607 F.3d 708, 715 (11th Cir. 2010) (internal quotation marks omitted).

      Under § 3582, a district court may modify a term of imprisonment in the

case of a defendant who was sentenced based on a sentencing range that has

subsequently been lowered by the Sentencing Commission. 18 U.S.C.

§ 3582(c)(2). But “[w]here a retroactively applicable guideline amendment

reduces a defendant’s base offense level, but does not alter the sentencing range


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upon which his or her sentence was based, § 3582(c)(2) does not authorize a

reduction in sentence.” United States v. Moore, 541 F.3d 1323, 1330 (11th Cir.

2008); see also U.S.S.G. § 1B1.10(a)(2)(B). Specifically, a reduction in a

defendant’s term of imprisonment is not authorized by § 3582(c)(2) where a

retroactively-applicable amendment does not lower the defendant’s applicable

guideline range due to the operation of another guideline provision, such as the

career-offender provisions. U.S.S.G. § 1B1.10, comment. (n.1(A)); Moore, 541

F.3d at 1330.

      Here, the district court did not err in denying Smith’s § 3582(c)(2) motion

because Amendment 750 did not lower Smith’s guideline range. Although the

district court departed downward in Smith’s criminal history category, Smith’s

ultimate sentence was based on his status as a career offender and not the

guideline that would otherwise have applied to his drug offenses. Because

Amendment 750 did not alter the career-offender guideline, and, therefore, did not

have the effect of lowering Smith’s guideline range, Smith was not eligible for a

reduction under § 3582(c)(2).

      The Supreme Court’s recent plurality opinion in Freeman does not alter our

analysis. In Freeman, the Court concluded that defendants who enter into plea

agreements that recommend a particular sentence as a condition of the guilty plea


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under Federal Rule of Criminal Procedure 11(c)(1)(C) were not precluded from

relief under § 3582(c)(2). Freeman, 564 U.S. at ___, 131 S.Ct. at 2690. This

court recently rejected the Freeman argument Smith makes here and held that

Moore remains binding precedent. See United States v. Lawson, – F.3d –, No. 11-

15912, 2012 WL 2866265, at *2-3 (11th Cir. July 13, 2012).

      Accordingly, the district court properly denied Smith’s motion to correct

sentence.

      AFFIRMED.




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