     Case: 13-40711      Document: 00512608482         Page: 1    Date Filed: 04/25/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                    No. 13-40711                                FILED
                                  Summary Calendar                          April 25, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EDDIE WARNER, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:10-CR-55-1


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       Eddie Warner, Jr., federal prisoner # 15092-035, pleaded guilty to
possession with intent to distribute 50 grams or more of cocaine base (crack)
in violation of 21 U.S.C. § 841(a)(1). He appeals the denial of his motion for a
sentence reduction under 18 U.S.C. § 3582(c)(2) based on retroactive
amendments to the Sentencing Guidelines governing crack offenses and based
on the Fair Sentencing Act (FSA) of 2010, which amended the statutory


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 13-40711

penalties under § 841(b), and which the Supreme Court held applied
retroactively to defendants sentenced after the effective date of the FSA in
Dorsey v. United States, 132 S. Ct. 2321, 2335-36 (2012). Citing Freeman v.
United States, 131 S. Ct. 2685 (2011), Warner argues that although he pleaded
guilty to a specific sentence of 144 months of imprisonment pursuant to
Federal Rule of Criminal Procedure 11(c)(1)(C), he may seek a reduction under
§ 3582(c)(2).
      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence “in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered
by the Sentencing Commission.” § 3582(c)(2); see United States v. Doublin, 572
F.3d 235, 237 (5th Cir. 2009). The district court’s decision whether to reduce
a sentence under § 3582(c)(2) is reviewed for an abuse of discretion, with
guideline interpretations reviewed de novo, and findings of fact for clear error.
United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009).
      The Sentencing Guidelines provide that a defendant is not eligible for a
reduction if a retroactively applicable amendment to the Guidelines “does not
have the effect of lowering the defendant’s applicable guideline range because
of the operation of another guideline or statutory provision.” U.S.S.G. § 1B1.10,
p.s., comment. (n.1(A)). Warner was determined to be a career offender, and
his guideline range was based on the career offender guidelines. We have held
that “[t]he crack cocaine guideline amendments do not apply to prisoners
sentenced as career offenders.” United States v. Anderson, 591 F.3d 789, 791
(5th Cir. 2009).
      In Freeman, the Supreme Court held that defendants who were
sentenced pursuant to Rule 11(c)(1)(C) plea agreements were not categorically
precluded from receiving a sentence reduction under § 3582(c)(2). Freeman,



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131 S. Ct. at 2692-95. However, even if Warner is not categorically barred from
a sentence reduction because of his Rule 11(c)(1)(C) plea agreement, nothing
in Freeman concerns defendants sentenced as career offenders or alters our
holding in Anderson. Warner’s reduced sentence remained based on his career
offender status. See United States v. Battle, 504 F. App’x 326, 327 (5th Cir.
2012) (affirming denial of § 3582(c)(2) motion because defendant’s sentence
resulting from a Rule 11(c)(1)(C) plea agreement remained based on his career
offender status).
      In addition, Warner seeks to reduce his sentence based on Dorsey and
the lower statutory mandatory minimums held to apply to those sentenced
after the effective date of the FSA. Warner was sentenced after the effective
date of the FSA. However, even if his career offender guideline range had been
based on the post-FSA statutory sentencing range, his sentence of 144 months
under the Rule 11(c)(1)(C) plea agreement would still have been based, to the
extent it could be said to be based on the guidelines, on the career offender
guidelines. Warner would still be ineligible for a reduction under § 3582(c)(2)
because “[t]he crack cocaine guideline amendments do not apply to prisoners
sentenced as career offenders.”      Anderson, 591 F.3d at 791.         Warner’s
arguments about comparable percentage-based reductions under § 1B1.10 are
not relevant because he is not eligible for a reduction as a result of an amended
guideline range.
      Although Warner seeks a reduction under § 3582(c)(2) based on a new
statutory sentencing range, he cites no authority which would authorize the
district court to reduce his sentence under § 3582(c)(2) on that basis. Nothing
in Dorsey changes our precedent that § 3582(c)(2) proceedings are not plenary
re-sentencings. See United States v. Kelly, 716 F.3d 180, 181-82 (5th Cir.),
cert. denied, 134 S. Ct. 439 (2013). Section § 3582(c)(2)’s application is limited



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to sentences “based on a sentencing range that has subsequently been lowered
by the Sentencing Commission.” § 3582(c)(2); Dillon v. United States, 560 U.S.
817, 825-26 (2010).
      The district court did not abuse its discretion in denying Warner’s
§ 3582(c)(2) motion. See Evans, 587 F.3d at 672.
     AFFIRMED.




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