              Case: 13-12638     Date Filed: 02/04/2014    Page: 1 of 5


                                                             [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-12638
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 5:97-cr-00074-CAR-1

UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                        versus

CLARENCE CLARK,

                                                      Defendant-Appellant.

                          __________________________

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

                                 (February 4, 2014)

Before TJOFLAT, JORDAN, and KRAVITCH, Circuit Judges.

PER CURIAM:

      Clarence Clark, proceeding pro se, appeals the district court’s denial of his

motion for a reduction of sentence under 18 U.S.C. § 3582(c)(2). After review of

the record and the parties’ briefs, we affirm.
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                                          I

      Because we write for the parties, we assume familiarity with the underlying

facts of the case and recite only what is necessary to resolve this appeal.

      In 1999, Mr. Clark was convicted of conspiracy to possess crack cocaine

with intent to distribute, possession of crack cocaine with intent to distribute, and

aiding and abetting the distribution of crack cocaine. The pre-sentence

investigation report indicated that Mr. Clark’s total offense level was 43 based on a

prior state court felony drug conviction, the quantity of cocaine base (1.5 or more

kilograms), as well as an adjustment for possession of a dangerous weapon, use of

a minor to commit a crime, and organizing or leading the criminal activity at issue.

Consistent with the pre-sentence investigation report’s advisory guidelines

calculation, the district court sentenced Mr. Clark to life imprisonment.

      On direct appeal, we held that Mr. Clark’s sentence violated Apprendi v.

New Jersey, 530 U.S. 466 (2000), as the district court, rather than the jury, had

determined the quantity of drugs involved in the offenses. Because the life

sentence exceeded the 30-year maximum sentence that could have been imposed

absent that finding, we vacated the sentence and remanded for resentencing. On

remand, the district court reduced the sentence to 360 months’ imprisonment. Mr.

Clark appealed his new sentence, but we affirmed in 2002.




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          In November of 2011, following the denial of a § 3582(c)(2) motion on the

basis of Amendment 706 to the advisory Guidelines, 1 Mr. Clark again moved for a

sentence reduction, this time based on Amendment 750 and the Fair Sentencing

Act of 2010, Pub. L. No. 111–220, 124 Stat. 2374 (2010). Mr. Clark argued that

Amendment 750 reduced his guideline range, entitling him to a sentence reduction.

He also challenged the district court’s original sentencing calculations. The district

court denied the motion, and this appeal followed.

                                                 II

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

authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d 983, 984

(11th Cir. 2008). Under § 3528(c)(2), a district court may reduce the terms of a

defendant’s imprisonment if the sentence was based on a sentencing range that the

Sentencing Commission has subsequently lowered. If, however, “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.” United States v. Moore,

541 F.3d 1323, 1330 (11th Cir. 2008).

          The district court correctly concluded that neither Amendment 750 nor §

3582(c)(2) empowered it to reduce Mr. Clark’s sentence. Although, as the


1
    See United States v. Clark, 362 F. App’x 74 (11th Cir. 2010) (per curiam).

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government acknowledges, Amendment 750 reduced Mr. Clark's initial base

offense level - predicated on 1.5 kilograms of attributable crack cocaine - from 38

to 34 and his total offense level from 43 to 42, it did not lower the ultimate

sentencing range on which the district court based his sentence. Under his new

total offense level and a criminal history category of III, Mr. Clark would be

eligible for a range of 360 months to life imprisonment. But 360 months’

imprisonment was the sentence Mr. Clark received on remand. Because

Amendment 750 did not lower the sentencing range on which Mr. Clark’s sentence

was based, he was not entitled to relief. See Moore, 541 F.3d at 1330.

      Nor did § 3582(c)(2) empower Mr. Clark to challenge the district court’s

original sentencing calculations de novo. See Dillon v. United States, 130 S.Ct.

2683, 2691 (2009) (“Section 3582(c)(2)'s text, together with its narrow scope,

shows that Congress intended to authorize only a limited adjustment to an

otherwise final sentence and not a plenary resentencing proceeding.”). The district

court’s findings of fact underlying its original advisory Guidelines calculation are

therefore not subject to reconsideration under § 3582(c)(2).

      Mr. Clark’s claim for relief under the Fair Sentencing Act is similarly

foreclosed by our precedent. In United States v. Berry, 701 F.3d 374, 377 (11th

Cir. 2012), we held that the Fair Sentencing Act is not a guidelines amendment by

the Sentencing Commission and therefore cannot be the basis for a sentence


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reduction under § 3582(c)(2). Mr. Clark, moreover, was sentenced before the

effective date of the FSA, which is not retroactively applicable to him. See id.

(“We agree 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.’”) (citation omitted).

                                              III

       The district court’s denial of Mr. Clark’s § 3582(c)(2) motion is affirmed. 2

       AFFIRMED.




2
 Because Mr. Clark is ineligible for resentencing, we need not address his argument that the
district court should consider the 18 U.S.C. § 3553(a) factors on remand.

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