           Case: 13-11636   Date Filed: 12/06/2013   Page: 1 of 8


                                                       [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-11636
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 4:94-cr-00060-CDL-MSH-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

KEITH BERNARD AUSTIN,

                                                         Defendant-Appellant.

                      ________________________

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

                            (December 6, 2013)



Before HULL, MARCUS, and EDMONDSON, Circuit Judges.
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PER CURIAM:



      Keith Bernard Austin appeals the district court’s denial of his request for a

sentence reduction under 18 U.S.C. § 3582(c)(2). According to Austin, he was

entitled to relief, notwithstanding the fact that he was sentenced as a career

offender in 1995, because (1) the crack cocaine guidelines under U.S.S.G. § 2D1.1,

later amended by Amendment 750, factored into the district court’s sentencing

decision in his case and (2) the reduced statutory penalties under the Fair

Sentencing Act of 2010 (“FSA”) are retroactively applicable in § 3582(c)(2)

proceedings, even to defendants sentenced before the FSA became effective in

2010. We affirm the district court’s decision.

      The district court’s legal conclusions about the scope of its authority under

§ 3582(c)(2) are reviewed de novo. United States v. Lawson, 686 F.3d 1317, 1319

(11th Cir.), cert. denied, 133 S.Ct. 568 (2012). We are bound by a prior panel

opinion unless it is overruled by the Supreme Court or by this Court sitting en

banc. Id. A Supreme Court decision will overrule our prior opinion only if it is

“clearly on point.” Id.

      Pursuant to § 3582(c)(2), the district court may reduce a defendant’s prison

term if the defendant was “sentenced to a term of imprisonment based on a

sentencing range that has subsequently been lowered by the Sentencing


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Commission.” 18 U.S.C. § 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1).

Amendment 750, the amendment at issue here, effected a permanent lowering of

the base-offense levels for particular crack cocaine quantities under U.S.S.G.

§ 2D1.1. See U.S.S.G. App. C, Amend. 750. Amendment 750, however, made no

changes to § 4B1.1, the career-offender provision. See id.

      As we explained in United States v. Moore, 541 F.3d 1323, 1330 (11th Cir.

2008), “[w]here a retroactively applicable guideline amendment reduces a

defendant’s base offense level, but does not alter the sentencing range upon which

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

sentence.” See also U.S.S.G. § 1B1.10(a)(2)(B) (providing that a § 3582(c)(2)

reduction is not authorized if the amendment “does not have the effect of lowering

the defendant’s applicable guideline range”). If an amendment did not lower the

defendant’s applicable guideline range “because of the operation of another

guideline or statutory provision,” then a sentence reduction is not authorized. See

U.S.S.G. § 1B1.10 cmt. n.1(A). To illustrate, Moore held that a career offender,

whose offense level was determined under § 4B1.1, was not eligible for

§ 3582(c)(2) relief based on amendments to the crack cocaine offense levels under

§ 2D1.1: the base offense levels set forth in § 2D1.1 “played no role” in the

calculation of the defendant’s guideline range. Moore, 541 F.3d at 1327 (involving

Amendment 706). A career offender’s offense level is determined by § 4B1.1 --


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not § 2D1.1 -- so his sentence may not be reduced based on an amendment to §

2D1.1. See id.; see also U.S.S.G. § 4B1.1(b).

      The Supreme Court’s decision in Freeman v. United States, 564 U.S. ----,

131 S.Ct. 2685, 180 L.Ed.2d 519 (2011), on which Austin heavily relies, did

nothing to alter the just-described precepts, including those we set out in Moore.

See Lawson, 686 F.3d at 1321. In Freeman, the question before the Supreme

Court was whether defendants who entered into Rule 11(c)(1)(C) plea agreements

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

A plurality of the Court determined that a defendant would be eligible to seek

relief under § 3582(c)(2), if the district court’s decision to accept the Rule

11(c)(1)(C) plea was based on the Sentencing Guidelines. Id. at ----, 131 S.Ct. at

2695 (plurality opinion). The plurality explained that, although Rule 11(c)(1)(C)

plea agreements included binding sentencing recommendations, the district court --

before accepting such a recommendation -- was required to evaluate “the

recommended sentence in light of the defendant's applicable sentencing range.” Id.

at ----, 131 S.Ct. at 2692. Accordingly, where the court accepted a Rule

11(c)(1)(C) plea, that “acceptance . . . itself [was] based on the Guidelines.” Id.

      Shortly after Freeman was decided, we directly considered what effect, if

any, the Supreme Court’s decision had on our prior ruling in Moore; and we

concluded that there was none. See Lawson, 686 F.3d at 1321. Instead, in Lawson,


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we held that Freeman was not “clearly on point” to the issue raised in Moore --

that is, the availability of § 3582(c)(2) relief for career offenders following

amendment to the drug-quantity provisions -- and therefore the Freeman decision

did not abrogate our precedent. Id. To be more specific, while Moore considered

a defendant who was preliminarily assigned a base-offense level under § 2D1.1 but

was actually assigned an ultimate guideline range as a career offender under

§ 4B1.1, Freeman instead dealt with a defendant who had entered a plea agreement

under Rule 11(c)(1)(C). See id. With Freeman thus distinguished from Moore, we

determined that Moore remained binding and unabrogated law. Id.

      Here, the district court correctly rejected Austin’s first argument for a

sentence reduction under § 3582(c)(2). Although Amendment 750 lowered the

base-offense levels for crack offenses under § 2D1.1, it left unaltered § 4B1.1, the

career-offender provision pursuant to which Austin’s guideline range was actually

calculated. In Moore, we squarely addressed the situation presented here and

concluded that those defendants whose guideline ranges were calculated as career

offenders, like Austin, were not eligible for sentence reductions under § 3582(c)(2)

following amendments to § 2D1.1. See Moore, 541 F.3d at 1327. Austin’s

reliance on the Supreme Court’s decision in Freeman is misplaced. The plurality

in that case may have made sentence reductions available to certain defendants to

whom such relief was previously disallowed -- namely, those who had entered


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Rule 11(c)(1)(C) plea agreements -- but, as Lawson explained, Freeman simply did

not speak to defendants who were sentenced as career offenders. See Freeman,

564 U.S. at ----, 131 S.Ct. at 2690. Moore remains good law, and Austin’s

argument to the contrary is unavailing.

      Austin’s second argument for relief, based on the purported retroactive

applicability of the FSA’s reduced statutory penalties, is also legally unsupported.

The FSA, which became effective on 3 August 2010, lowered the statutory

mandatory minimum penalties for crack cocaine offenses under 21 U.S.C.

§ 841(b). See Fair Sentencing Act of 2010, Pub.L. No. 111–220 § 2(a), 124 Stat.

2372 (2010). The FSA also “instructed the Commission to make … conforming

amendments to the Federal sentencing guidelines … to achieve consistency with

other guideline provisions and applicable law.” Dorsey v. United States, 567 U.S.

----, 132 S.Ct. 2321, 2329, 183 L.Ed.2d 250 (2012) (quotations omitted). The

Commission obliged by promulgating Amendment 750, discussed above. See

U.S.S.G. App. C, Amend. 750.

      The FSA’s reduced statutory penalties are applicable to those persons

sentenced after the Act took effect, but not to those persons sentenced beforehand.

In Dorsey, the Supreme Court concluded that the FSA’s reduced statutory

mandatory minimums apply to defendants who committed crack cocaine offenses

before the Act became effective but who were initially sentenced after that date.


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Dorsey, 567 U.S. at ----, 132 S.Ct. at 2326. We later made clear that Dorsey did

not extend to pre-FSA defendants who were sentenced before the Act’s effective

date. United States v. Berry, 701 F.3d 374, 377 (11th Cir. 2012). In Berry, after

surveying then-existing case law from sister circuits, we ultimately “agree[d] with

every other circuit to address the issue that there is no evidence that Congress

intended [the FSA] to apply to defendants who had been sentenced prior to the

August 3, 2010 date of the Act’s enactment.” Id. (quotations omitted).

Furthermore, Dorsey itself “did not suggest that the FSA’s new mandatory

minimums should apply to defendants . . . who were sentenced long before the

FSA’s effective date.” Id. Instead, “[t]he Supreme Court in Dorsey carefully

confined its application of the FSA to pre-Act offenders who were sentenced after”

that date. Id. at 378.

      With our prior ruling in Berry as backdrop, the district court correctly denied

Austin’s second argument for § 3582(c)(2) relief. Austin has pointed to nothing in

the text, history, or purpose of the FSA that demands its retroactive applicability to

defendants who, like him, were sentenced before it took effect; and our prior

precedent dictates the opposite result. See Berry, 701 F.3d at 377. Nor does the

Supreme Court’s decision in Dorsey aid his argument, as the Court’s ruling in that

case was confined to defendants who, unlike him, were or would be sentenced

after the FSA became effective. See Dorsey, 567 U.S. ----, 132 S.Ct. at 2326. For


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that reason, Austin’s argument fails.

      AFFIRMED.




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