              Case: 12-16367    Date Filed: 09/25/2013   Page: 1 of 5


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-16367
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 5:04-cr-00023-MCR-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

ROBERT JOHN COOK,

                                                              Defendant-Appellant.

                          ________________________

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

                               (September 25, 2013)

Before DUBINA, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:

      Appellant Robert John Cook, proceeding pro se, appeals the district court’s

denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction, pursuant to
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Amendment 750 to the Sentencing Guidelines governing crack cocaine offenses.

Cook previously pled guilty to conspiring to distribute and possess 50 or more

grams of a substance containing crack cocaine and 500 or more grams of a

substance containing a detectible amount of crack cocaine. Although his pre-

sentence report designated him as a career offender under U.S.S.G. § 4B1.1,

Cook’s applicable guideline range was 360 months to life imprisonment based on

drug quantity under U.S.S.G. § 2D1.1. The district court sentenced Cook to life

imprisonment, the statutory mandatory minimum for his offense under 21 U.S.C.

§ 841(b)(1)(A), based on two prior offenses. The district court subsequently

reduced Cook’s sentence below the mandatory minimum under Fed.R.Crim.P.

35(b), for substantial assistance. The district court presiding over Cook’s

§ 3582(c)(2) motion found Cook ineligible for relief because he had been

sentenced as a career offender.

      On appeal, Cook argues that the district court erred in denying his

§ 3582(c)(2) motion for reduction of sentence. He contends that the court

erroneously based its ruling on an inaccurate determination that his sentence was

controlled by the Guidelines for career offender, rather than drug quantity. Cook

emphasizes that the relevant issue is whether the district court correctly denied

§ 3582(c)(2) relief based on his career offender status, not whether his mandatory

minimum of life imprisonment rendered him ineligible for such relief.


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      “We review de novo a district court’s conclusion that a defendant is not

eligible for a sentence reduction under § 3582(c)(2).” United States v. Glover, 686

F.3d 1203, 1206 (11th Cir. 2012).

      Amendment 750 to the Sentencing Guidelines, made retroactively applicable

on November 1, 2011, by Amendment 759, revised the crack cocaine quantity

tables listed in § 2D1.1(c). See U.S.S.G. App. C, Amend. 750, Reason for

Amendment; id. Amend. 759. In 2010, the Fair Sentencing Act (“FSA”) raised the

drug quantity thresholds of crack cocaine required to trigger the mandatory

minimum imprisonment terms. U.S.S.G. App. C, Amend. 750, Reason for

Amendment. To account for the statutory changes in crack cocaine sentencing, the

Sentencing Commission implemented Amendment 750 to revise the drug quantity

table to lower the base offense levels for crack cocaine. See U.S.S.G. App. C,

Amend. 750, Reason for Amendment; U.S.S.G. § 2D1.1(c)(7).

      Under § 3582, district courts are permitted to modify a term of imprisonment

when a defendant is sentenced pursuant to a sentencing range that has since been

lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). However, a

reduction is not authorized under § 3582(c)(2), even when the retroactive

amendment applies to the defendant, if the amendment does not have the effect of

lowering the applicable guideline range. U.S.S.G. § 1B1.10(a)(2)(B) & comment.

(n.1(A)); United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008). Such


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situations include those in which the retroactive amendment would result in a

lower base offense level if the defendant was not subject to a statutory mandatory

minimum sentence. Glover, 686 F.3d at 1206; see United States v. Williams,

549 F.3d 1337, 1340-41 (11th Cir. 2008) (holding that a sentence based on a

mandatory minimum was unaffected by Amendment 706 to the Sentencing

Guidelines). Even if the defendant is sentenced below the statutory mandatory

minimum, due to the government filing a substantial assistance motion, the district

court’s downward departure does not constitute a waiver of the applicability of the

mandatory minimum; thus, the sentence remains based upon the mandatory

minimum for purposes of § 3582(c)(2). Williams, 549 F.3d at 1340-41; United

States v. Mills, 613 F.3d 1070, 1077-78 (11th Cir. 2010) (holding that “the

operative provision in determining [the defendants’] applicable sentencing range is

the statutory minimum, . . . not the crack cocaine Guideline,” and that the

defendants were “still subject to the mandatory minimum, upon which their

substantial assistance departures—and thus their ultimate sentences—were

based.”).

      In this case, regardless of which Guideline applied, we conclude that Cook’s

original sentence was subject to a statutory mandatory minimum sentence of life

imprisonment; thus, he was not eligible for § 3582(c)(2) relief, despite his

subsequent sentence reduction for substantial assistance. See Glover, 686 F.3d at


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1206; Mills, 613 F.3d at 1077-78. Although the district court denied Cook’s

§ 3582(c)(2) motion on the ground that he was sentenced as a career offender, we

“may affirm for any reason supported by the record, even if not relied upon by the

district court,” United States v. Chitwood, 676 F.3d 971, 975 (11th Cir.), cert.

denied, 133 S. Ct. 288 (2012) (internal quotation marks omitted). Because Cook’s

original sentence was governed by a statutory mandatory minimum, Amendment

705 to the Sentencing Guidelines did not operate to reduce his sentencing range.

Accordingly, Cook is not eligible for a sentence reduction under § 3582(c)(2).

      AFFIRMED.




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