            Case: 13-11002    Date Filed: 12/20/2013   Page: 1 of 7


                                                           [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                       ________________________

                             No. 13-11002
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:89-cr-00022-WLS-TQL-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus


GEORGE CURRY HUDSON,

                                                           Defendant-Appellant.

                      __________________________

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

                             (December 20, 2013)

Before CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges.

PER CURIAM:
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      George Curry Hudson appeals the district court’s denial of his 18 U.S.C.

§ 3582(c)(2) motion for a sentence reduction based on Amendment 750 to the

federal sentencing guidelines and the Fair Sentencing Act of 2010 (FSA), Pub. L.

No. 111-220, 124 Stat. 2372, which respectively lowered the base offense levels

and statutory minimum sentences for crack-cocaine offenses. In 1991, Hudson

was sentenced to 420 months imprisonment after a jury found him guilty of

conspiracy to possess with intent to distribute more than 50 grams of crack

cocaine, two substantive counts of possession with intent to distribute crack

cocaine, and one count of money laundering. See 21 U.S.C. §§ 841(a)(1), 846; 18

U.S.C. § 1956(a)(1)(B)(i). Although his base offense level was initially calculated

under the then-existing version of § 2D1.1 of the United States Sentencing

Guidelines, the crack-cocaine guideline, he was designated a career offender under

§ 4B1.1, which resulted in a guideline range of 360 months to life imprisonment.

Because Hudson was sentenced as a career offender, instead of under the crack-

cocaine guideline subsequently lowered by Amendment 750, the district court

concluded that he was ineligible for a § 3582(c)(2) reduction.

      On appeal, Hudson contends that he is entitled to a sentence reduction

notwithstanding the fact that he was sentenced as a career offender. While

acknowledging our holding in United States v. Moore, 541 F.3d 1323 (11th Cir.

2008), that career offenders are not eligible for § 3582(c)(2) relief because their


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sentences are based on § 4B1.1, not the crack-cocaine guideline, he asserts that the

Supreme Court’s plurality opinion in Freeman v. United States, 564 U.S. —, 131

S.Ct. 2685 (2011), effectively abrogated Moore and allows for reductions in

sentences that were in any way based on a retroactively amended guideline range.

He also contends that he is entitled to be resentenced under the more lenient

statutory penalties prescribed by the FSA, particularly in light of the Supreme

Court’s decision in Dorsey v. United States, — U.S. —, 132 S.Ct. 2321 (2012).

                                         I.

      We review de novo the district court’s legal conclusions about the scope of

its authority to grant a § 3582(c)(2) sentence reduction. United States v. Lawson,

686 F.3d 1317, 1319 (11th Cir. 2012). Section 3582 authorizes a district court to

reduce a defendant’s prison term if it was “based on a sentencing range that has

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

§ 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1). In Moore, we held that “[w]here a

retroactively applicable guideline amendment,” such as Amendment 750, “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

a sentence.” 541 F.3d at 1330; see also U.S.S.G. § 1B1.10 cmt. n.1(A) (explaining

that a § 3582(c)(2) reduction is not authorized if the relevant guideline amendment




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“does not have the effect of lowering the defendant’s applicable guideline range

because of the operation of another guideline or statutory provision”).

      In Freeman, which addressed whether defendants who enter into Rule

11(c)(1)(C) plea agreements that recommend particular sentences are eligible for

§ 3582(c)(2) relief, a plurality of the Supreme Court concluded that such relief

“should be available to permit the district court to revisit a prior sentence to

whatever extent the sentencing range in question was a relevant part of the analytic

framework the judge used to determine the sentence or to approve the [plea]

agreement.” 131 S.Ct. at 2692–93. Justice Sotomayor, in her concurrence, took a

narrower view, arguing that a sentence imposed in accordance with a Rule

11(c)(1)(C) plea agreement is based on the agreement itself and not the applicable

guideline range. Id., 131 S.Ct. at 2695 (Sotomayor, J., concurring). Only where a

plea agreement “expressly uses a Guidelines sentencing range . . . to establish the

term of imprisonment,” Justice Sotomayor argued, is a defendant eligible for

§ 3582(c)(2) relief based on a retroactive guideline amendment. Id.

      We have already rejected the contention, pursued by Hudson on appeal, that

Freeman effectively overruled Moore and extended § 3582(c)(2) relief to

defendants sentenced as career offenders. See Lawson, 686 F.3d at 1320–21.

Hudson argues that we should not follow our decision in Lawson because it unduly

relied on Justice Sotomayor’s concurrence in Freeman, which in his assessment is


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not the controlling opinion that case. That contention is not only factually

inaccurate, but legally irrelevant as well. While it is true that in Lawson we stated

that Justice Sotomayor’s concurrence “can be viewed as the holding in Freeman,”

we nevertheless concluded that “even if the plurality opinion contained the

holding, Freeman would [still] not overrule Moore.” Id. at 1321 n.1. We

explained that “[n]either the plurality opinion nor Justice Sotomayor’s concurrence

in Freeman” were “clearly on point to the issue that arose in Moore” because

neither “addressed 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 § 4B.1.” Id. at 1321 (quotation marks omitted). And even if

we were to assume that Lawson’s analysis was somehow wanting or flawed, as

Hudson insists, we would be still be bound by it under the prior panel precedent

rule. See Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001) (“[W]e

categorically reject any exception to the prior panel precedent rule based upon a

perceived defect in the prior panel’s reasoning or analysis as it relates to the law in

existence at that time.”). Because Hudson’s guideline range was driven by his

career offender designation, not the crack-cocaine guideline found in § 2D1.1, he is

not entitled to a sentence reduction under Amendment 750 because it did “not alter

the sentencing range upon which his . . . sentence was based.” See Moore, 541

F.3d at 1330.


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      Hudson’s assertion that he is entitled to a sentence reduction under the FSA

is also foreclosed by binding circuit precedent. In Dorsey, the Supreme Court held

that the FSA’s lower mandatory minimum penalties apply to pre-Act offenders

who are sentenced after the Act’s effective date of August 3, 2010. 132 S.Ct. at

2326. We have since held that defendants who were originally sentenced before

that effective date are not eligible for § 3582(c) relief under the FSA, both because

it “is not a guidelines amendment by the Sentencing Commission, but rather a

statutory change by Congress,” and because it does not otherwise apply

retroactively to defendants sentenced before its effective date. United States v.

Berry, 701 F.3d 374, 377 (11th Cir. 2012). We also rejected the notion that Dorsey

compelled a contrary conclusion, explaining that “Dorsey carefully confined its

application of the FSA to pre-Act offenders who were sentenced after the Act’s

effective date” and “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. at 377–78.

      Hudson contends that our Berry decision is not controlling because it did not

involve a defendant seeking a sentence reduction based on a combination of

Amendment 750 and the FSA. But that argument is also foreclosed by circuit

precedent. In United States v. Hippolyte, 712 F.3d 535, 542 (11th Cir. 2013), we

rejected a defendant’s argument that Berry was distinguishable from his case


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because he was relying on both Amendment 750 and the FSA. We explained that

the defendant’s argument “lack[ed] substance” because Amendment 750 did not

lower his guideline sentence, which was based on the statutory minimum

prescribed by 21 U.S.C. § 841(b)(1). Hippolyte, 712 F.3d at 542. In his dogged

quest to evade the clear import of our precedent, Hudson contends that Hippolyte

is itself distinguishable because it did not involve a career offender. That Hudson,

unlike Hippolyte, was sentenced as a career offender, instead of in accordance with

a statutory minimum, is a distinction without a difference because in either case

Amendment 750 does not have the desired effect of lowering the applicable

guideline range. The district court correctly concluded that Hudson is not eligible

for a § 3582(c)(2) sentence reduction based on Amendment 750, the FSA, or a

combination of the two.

      AFFIRMED.




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