            Case: 12-13451   Date Filed: 05/29/2013   Page: 1 of 5




                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-13451
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:05-cr-00404-SCB-TGW-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

WILLIAM D. COOK,

                                                          Defendant-Appellant.



                       ________________________

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

                              (May 29, 2013)


Before TJOFLAT, PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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       William D. Cook, a federal prisoner, appeals from the district court’s denial

of his 18 U.S.C. § 3582(c)(2) motion to reduce sentence. The district court denied

Cook’s motion because, as a career offender, Amendment 750 did not reduce his

guideline range. 1 On appeal, Cook argues he should be eligible for § 3582(c)(2)

resentencing because the sentencing court considered his unenhanced criminal

history category in sentencing him below the career offender guideline range.

After careful review, we affirm. 2

       A sentence reduction under § 3582(c)(2) must be “consistent with applicable

policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).

The applicable policy statements, found in U.S.S.G. § 1B1.10, state that “[a]

reduction in the defendant’s term of imprisonment . . . is not authorized under 18

U.S.C. § 3582(c)(2) if . . . [the] amendment . . . does not have the effect of

lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).

The 2012 Commentary to the Sentencing Guidelines expressly provides that the

“applicable guideline range” is “the guideline range that corresponds to the offense

level and criminal history category determined pursuant to § 1B1.10(a), which is

determined before consideration of any departure provision in the Guidelines

       1
           Amendment 750 amended the drug quantity table in § 2D1.1(c) to reduce offense
levels in crack cocaine cases. See U.S.S.G. App. C, Amends. 748, 750. It was made retroactive
by Amendment 759, effective November 1, 2011. See id., Amend. 759.
       2
         We review de novo a district court’s conclusions about the scope of its legal authority
under § 3582(c)(2). United States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008).
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Manual or any variance.” Id. § 1B1.10, cmt. n.1(A). The Supreme Court has held

that a Commentary provision “which functions to interpret a guideline or explain

how it is to be applied” is binding as long as the Commentary does not conflict

with the Constitution, a federal statute, or the guideline at issue. Stinson v. United

States, 113 S. Ct. 1913, 1917-18 (1993) (quotations omitted).

      In Moore, we addressed whether Amendment 706 authorized reductions

under § 3582(c)(2) for defendants who had been convicted of crack cocaine

offenses, but sentenced under the career offender guidelines. See United States v.

Moore, 541 F.3d 1323, 1325 (11th Cir. 2008). We explained that § 3582(c)(2)

only authorizes reductions to sentences that were “based on” sentencing ranges that

were subsequently lowered. Moore, 541 F.3d at 1327. As Amendment 706 did

not lower the career offender offense levels, we concluded it did not lower the

sentencing range upon which a career offender’s sentence had been based. Id. We

also explained that the Commentary to § 1B1.10 “[made] clear” that a reduction

was not authorized where an amendment lowered a defendant’s base offense level

for the offense of conviction but not the career offender sentencing range under

which the defendant was sentenced. Id. at 1327-28.

      Even after a divided Supreme Court interpreted § 3582’s “based on”

language in Freeman v. United States, 131 S. Ct. 2685 (2011), Moore remains

binding precedent in this Circuit. United States v. Lawson, 686 F.3d 1317, 1321


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(11th Cir.), cert. denied, 133 S. Ct. 568 (2012). Freeman did not address

“defendants who were assigned a base offense level under one guideline section,

but who were ultimately assigned a total offense level and guideline range under

§ 4B1.1.” Id. Therefore, a defendant who was convicted of a crack cocaine

offense but sentenced as a career offender is not eligible for a § 3582(c)(2)

reduction under Amendment 750. Id.

      The Commission’s updated Commentary restricting § 3582 eligibility

squarely addresses the exception Cook proposes on appeal and completely

forecloses his argument, especially since the Supreme Court has held that a

Commentary provision explaining how a guideline is to be applied is binding so

long as the Commentary does not conflict with the Constitution, a federal statute,

or the guideline at issue. See Stinson, 113 S. Ct. at 1917-18. The district court

found that Cook was a career offender, and calculated his guideline range

accordingly. The Commentary states that eligibility can be triggered only by an

amendment to the guideline range calculated under § 1B1.1(a), before any

variances or departures are imposed. See U.S.S.G. § 1B1.10, cmt. n.1(A). Cook,

as a career offender, cannot be eligible for § 3582 relief regardless of the rationale

the court may have used in imposing a below-guidelines sentence, because the

career offender guidelines have not been amended. See Moore, 541 F.3d at 1327.




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      Cook’s arguments that the Commentary to § 1B1.10 should not be followed

lack merit. In Melvin, we affirmed that the Sentencing Commission has the

authority to promulgate policy statements that affect eligibility for resentencing.

See United States v. Melvin, 556 F.3d 1190, 1192-93 (11th Cir. 2009). Moreover,

Cook's argument that the Commentary does not interpret a guideline provision is

misplaced, since the Commentary to §1B1.10 explains how to calculate the

relevant offense level and “applicable guideline range.” See U.S.S.G. § 1B1.10,

cmt. nn.1–6. Finally, Cook’s argument that the Commentary is inconsistent with

Freeman’s interpretation of the term “based on” is analogous to the arguments we

have already rejected in Lawson. See Lawson, 686 F.3d at 1321. Accordingly, we

affirm the district court’s denial of Cook’s § 3582(c)(2) motion.

      AFFIRMED.




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