           Case: 15-12873   Date Filed: 03/30/2016   Page: 1 of 11


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-12873
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 9:08-cr-80094-DMM-3



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

NATHANIEL HARDIMAN,

                                                         Defendant-Appellant.

                       ________________________

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

                             (March 30, 2016)

Before TJOFLAT, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       Nathaniel Hardiman, represented by counsel on appeal, appeals the district

court’s denial of his pro se motion for a sentence reduction under 18 U.S.C.

§ 3582(c)(2) based on Amendment 782 to the United States Sentencing Guidelines

(“U.S.S.G.”). 1 The district court found Hardiman ineligible for § 3582(c)(2) relief

because he was sentenced as a career offender, U.S.S.G. § 4B1.1, so Amendment

782, which lowered the base offense levels for most drug offenses under U.S.S.G.

§ 2D1.1, did not lower the guideline range upon which his sentence was based. On

appeal, Hardiman argues that, because he received a downward variance to the low

end of the crack-cocaine guideline range that would have applied if he were not a

career offender, he is eligible for a sentence reduction based on the Supreme

Court’s decision in Freeman v. United States, 564 U.S. ___, 131 S. Ct. 2685

(2011). He contends that Freeman abrogated our decision in United States v.

Moore, 541 F.3d 1323 (11th Cir. 2008), in which we concluded that career

offenders were not eligible for relief under § 3582(c)(2) based on changes to the

crack-cocaine guidelines. After careful review, we affirm.

                                             I.

       Hardiman pled guilty to conspiracy to distribute fifty grams or more of crack

cocaine. At his sentencing in 2009, the district court found that Hardiman had

       1
          In the underlying motion, Hardiman appears to have moved for relief based on
Amendment 750, but the district court construed his request as based on Amendment 782, as the
court previously had denied Hardiman relief under Amendment 750. Our analysis is the same
regardless of the particular amendment at issue.
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prior felony convictions that qualified him as a career offender under U.S.S.G.

§ 4B1.1. Under the career-offender guideline range, Hardiman faced 262 to 327

months in prison. Nevertheless, the court found that the career-offender guideline,

while technically applicable, produced an unreasonable sentencing range. The

court therefore downwardly varied from that range, pursuant to Booker 2 and 18

U.S.C. § 3553(a), and sentenced Hardiman to 130 months in prison—equivalent to

the low end of the guideline range (130 to 162 months) produced by the crack-

cocaine guideline, U.S.S.G. § 2D1.1.

       Since 2009, the Sentencing Commission has twice amended the drug-

quantity table in § 2D1.1 to reduce the base offense levels applicable to crack-

cocaine offenses. Hardiman first sought a sentence reduction in July 2012 after the

Commission issued Amendment 750.3 The court found Hardiman ineligible for

relief as a career offender and denied the motion.

       Hardiman next sought a sentence reduction in September 2014, which the

district court construed as requesting a reduction under Amendment 782. The

court again found Hardiman ineligible and denied the motion. The court explained

that Amendment 782 did not apply because, “[a]lthough the Court varied

downward from the guidelines range, the Defendant was classified as a career

       2
        United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
       3
         Hardiman also requested relief under the Fair Sentencing Act of 2010, but this Act
cannot serve as a basis for a § 3582(c)(2) sentence reduction and does not apply retroactively.
United States v. Berry, 701 F.3d 374, 377-78 (11th Cir. 2012).
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offender and the Court’s variance does not change the Defendant’s career offender

status.” Doc. 564. Hardiman now appeals.

                                       II.

      We review de novo whether a defendant is eligible for a sentence reduction

under § 3582(c)(2). See United States v. Davis, 587 F.3d 1300, 1303 (11th Cir.

2009).

      Section 3582(c)(2) permits district courts to reduce a defendant’s term of

imprisonment in the limited circumstances where the defendant was sentenced

“based on a sentencing range that has subsequently been lowered by the

Sentencing Commission.” 18 U.S.C. § 3582(c)(2). A defendant’s eligibility for a

sentence reduction is determined by calculating the “amended guideline range that

would have been applicable” if the retroactive amendment had been in effect at the

defendant’s original sentencing.   See U.S.S.G. § 1B1.10(b)(1).         The amended

guideline range is determined by substituting only the amended guideline for the

one originally used. Id.; see United States v. Bravo, 203 F.3d 778, 780 (11th Cir.

2000).

      A sentence reduction is not consistent with the policy of the Sentencing

Commission—and therefore is not authorized under § 3582(c)(2)—if the

retroactive amendment “does not have the effect of lowering the defendant’s

applicable guideline range.”       U.S.S.G. § 1B.10(a)(2)(B); see 18 U.S.C.


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§ 3582(c)(2) (providing that any sentence reduction must be “consistent with

applicable policy statements issued by the Sentencing Commission.”).               The

commentary to § 1B1.10 explains that the “applicable guideline range” is

“determined before consideration of any departure provision in the Guidelines

Manual or any variance.” U.S.S.G. § 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, 508 U.S. 36, 42-43, 45, 113 S. Ct. 1913, 1917-19 (1993) (alterations

and internal quotation marks omitted).

      In Moore, we explained that § 3582(c)(2) authorizes reductions to only those

sentences that were “based on” sentencing ranges that were subsequently lowered

by a retroactive amendment. Moore, 541 F.3d at 1327; see id. at 1326 (“Where a

retroactively applicable guideline amendment does not alter the sentencing range

upon which a defendant’s sentence was based, § 3582(c)(2) does not authorize a

sentence reduction.”). Because Amendment 706 did not alter the career-offender

offense levels, we concluded that it did not lower the sentencing range upon which

a career offender’s sentence had been based. Id. at 1327. We also noted that the

commentary to § 1B1.10(a) “ma[de] clear” that a § 3582(c)(2) reduction was not

authorized where an amendment lowered a defendant’s base offense level for the


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offense of conviction but not the career-offender sentencing range under which the

defendant was sentenced. Id. at 1327-28; see also U.S.S.G. § 1B1.10 cmt. n.1(A)

(explaining that a reduction under § 3582(c)(2) is not consistent with the policy

statement if the retroactive amendment “is applicable to the defendant but the

amendment does not have the effect of lowering the defendant’s applicable

guideline range because of the operation of another guideline or statutory

provision”).

      Nevertheless, we distinguished the facts in Moore from two out-of-circuit

district court cases in which the sentencing courts, by applying a downward

departure under U.S.S.G. § 4A1.3, “reduced the defendants’ offense levels to those

that would be in effect absent the career offender guideline.” Id. at 1229-30.

Those reduced offense levels were then used to determine the guideline ranges

under which the defendants were sentenced.         Id.   Because Amendment 706

lowered the offense levels that were used to determine the applicable guideline

ranges, we stated that “a reduction in sentence is within the district court’s

discretionary authority under § 3582(c)(2).” Id. at 1330. We found no similar

circumstances with respect to the defendants in Moore, because there was no

“indication that the court based [the] sentence[s] on the guideline range that would

have applied absent the career offender designation.” Id.




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      In Freeman, the Supreme Court addressed whether defendants who enter

into Rule 11(c)(1)(C), Fed. R. Crim. P., plea agreements are eligible for

§ 3582(c)(2) relief.   131 S. Ct. at 2690.      A four-justice plurality stated that

§ 3582(c)(2) “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

agreement.” Id. at 2692-93. The plurality concluded that the judge’s decision to

accept a Rule 11(c)(1)(C) plea “is likely to be based on the Guidelines; and when it

is, the defendant should be eligible to seek § 3582(c)(2) relief.” Id. at 2695.

      In an opinion concurring in the judgment, Justice Sotomayor determined that

sentences imposed pursuant to Rule 11(c)(1)(C) plea agreements, as a general

matter, were not “based on” the guidelines.         Id. at 2696-97 (Sotomayor, J.,

concurring in the judgment).      But a particular defendant may be eligible for

§ 3582(c)(2) relief if the agreement “expressly uses a Guidelines sentencing range

to establish the term of imprisonment, and that range is subsequently lowered by

the Commission.” Id. at 2698 (Sotomayor, J., concurring in the judgment).

      In Lawson, we rejected the argument that Freeman overruled or abrogated

our decision in Moore. United States v. Lawson, 686 F.3d 1317, 1321 (11th Cir.

2012). We explained that neither the plurality opinion nor Justice Sotomayor’s

concurrence dealt with the issue presented in Moore—“defendants who were


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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. Thus,

Moore remains binding precedent in this Circuit. Id. at 1321; see also United

States v. Tellis, 748 F.3d 1305, 1309-10 (11th Cir. 2014) (again rejecting the

argument that Freeman overruled Moore).

      Here, the district court properly denied Hardiman’s § 3582(c)(2) motion.

Despite Hardiman’s contention that Moore has been abrogated by Freeman, we

have held that Moore continues to be good law in this Circuit. See Lawson, 686

F.3d at 1321. Because Hardiman was found to be a career offender and sentenced

under § 4B1.1, Amendment 782 did not have the effect of lowering the guideline

range upon which his sentence was based.         See Moore, 541 F.3d at 1327.

Amendment 782 lowered the crack-cocaine base offense levels in § 2D1.1 but did

nothing to the career-offender base offense levels in § 4B1.1. Accordingly, under

Moore and Lawson, Amendment 782 did not alter the career-offender guideline

range upon which his sentence was based, so a § 3582(c)(2) reduction is not

authorized.

      Acknowledging these general points, Hardiman counters that his sentence in

fact was “based on” the crack-cocaine guideline range because the sentencing court

downwardly varied from the career-offender guideline range to the low end of the




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range calculated under § 2D1.1.4 In similar circumstances, the Sixth Circuit held

that a career offender was eligible for § 3582(c)(2) relief when the sentencing

judge varied from the career-offender guideline range to a range “that would have

applied to [the defendant] under the crack cocaine guidelines if he were not a

career offender.” United States v. Jackson, 678 F.3d 442, 444-45 (6th Cir. 2012).

Even our decision in Moore suggested that § 3582(c)(2) relief may not be

completely foreclosed to a career offender when there is an “indication that the

court based [the] sentence on the guideline range that would have applied absent

the career offender designation.” Moore, 541 F.3d at 1330.

       Nonetheless, commentary to the Sentencing Commission’s policy statement

on § 3582(c)(2) sentence reductions, which became effective in November 2011,

forecloses Hardiman’s argument.            Under § 3582(c)(2), any sentence reduction

must be “consistent with applicable policy statements issued by the Sentencing

Commission,” 18 U.S.C. § 3582(c)(2), and a reduction is not consistent with the

Commission’s policy statement if the retroactive amendment “does not have the

effect of lowering the defendant’s applicable guideline range,” U.S.S.G.

§ 1B1.10(a)(2)(B). The commentary to § 1B1.10, in turn, defines the “applicable

guideline range” as the range “determined before consideration of . . . any

       4
           We note that there is some force to this position because, from a practical standpoint,
Hardiman’s sentence was “based on” the crack-cocaine guideline range, and Hardiman may very
well have received a sentence below 130 months of imprisonment had Amendment 782 been in
effect at the time of his original sentencing.
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variance. U.S.S.G. § 1B1.10 cmt. n.1(A). Therefore, Hardiman’s eligibility for a

sentence reduction is determined before considering the downward variance he

received at sentencing. In effect, the fact that Hardiman received a downward

variance from the career-offender guideline range is irrelevant to his eligibility for

§ 3582(c)(2) relief.

      Hardiman asserts without further analysis that the commentary defining

“applicable guideline range” is inconsistent with the Supreme Court’s

interpretation of § 3582(c)(2) in Freeman.       However, Freeman addressed the

question of whether a term of imprisonment was “based on” a sentencing range

that has been lowered. See 131 S. Ct. at 2690-91. Freeman did not address

§ 3582(c)(2)’s other explicit requirement that any reduction must be “consistent

with applicable policy statements issued by the Sentencing Commission.” See 18

U.S.C. § 3582(c)(2).    The relevant commentary to § 1B1.10 explains how to

determine when a reduction is consistent with the Sentencing Commission’s policy

statement on § 3582(c)(2) reductions—specifically when an amendment “lower[s]

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

commentary does not interpret, and is not plainly inconsistent with, § 3582(c)(2).

Accordingly, we reject Hardiman’s argument on this point.




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                                      III.

      In sum, the district court properly denied Hardiman’s § 3582(c)(2) motion

because he was sentenced as a career offender and Amendment 782 did not lower

his applicable guideline range, even though he received a downward variance to a

term of imprisonment within the range that would have applied if he were not a

career offender.

      AFFIRMED.




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