           Case: 15-12604   Date Filed: 01/21/2016   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                            No. 15-12604
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 0:08-cr-60158-DTKH-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

JOSEPH DIGRISTINE,

                                                         Defendant-Appellant.

                      ________________________

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

                            (January 21, 2016)

Before WILSON, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Defendant Joseph Digristine, proceeding with counsel, appeals the district

court’s denial of his motion for a sentence reduction pursuant to 18 U.S.C.

§ 3582(c)(2) and Amendment 782 to the Sentencing Guidelines. After careful

review, we affirm.

I. BACKGROUND

      In 2008, Defendant pleaded guilty to conspiring to possess with intent to

distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Following his

guilty plea, the probation officer prepared a Presentence Investigation Report

(“PSR”). The PSR indicated that Defendant was a career offender under U.S.S.G.

§ 4B1.1 because he had two prior convictions for crimes of violence. Because the

statutory maximum for Defendant’s present offense was 25 years or more,

Defendant’s career offender status resulted in a base offense level of 34.

Defendant received a three-level reduction for acceptance of responsibility

pursuant to U.S.S.G. § 3E1.1(a) and (b), which resulted in a total offense level of

31.

      Based on both his lengthy criminal history and his career offender status, the

PSR assigned Defendant a criminal history category of VI. With a total offense




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level of 31 and a criminal history category of VI, the PSR calculated Defendant’s

guideline range as 188 to 235 months’ imprisonment. 1

       Defendant did not file any objections to the PSR. At the sentencing hearing,

Defendant explained that he was a career offender due to a 1991 conviction for

attempted capital sexual battery—an offense that occurred when he was sixteen

years old. Absent the career offender designation, his guideline range would have

been 92 to 115 months. He asked that the district court disregard his career

offender status and vary below the guideline range to 92 months’ imprisonment.

The Government agreed that a below-guidelines sentence was appropriate in this

case. After considering the 18 U.S.C. § 3553(a) factors, the district court

determined that a sentence below the guideline range was appropriate and

sentenced Defendant to 108 months’ imprisonment. Defendant did not file a direct

appeal.

       In March 2015, Defendant filed a counseled motion for a reduction in

sentence pursuant to § 3582(c)(2) and Amendment 782. Though acknowledging

that he was considered a career offender, Defendant argued that he was eligible for

a sentence reduction because the district court had varied downward and based

Defendant’s sentence on the guideline range that would have applied absent his

career offender designation. He also noted that he might not have qualified as a

1
 Without the career offender designation, the PSR indicated that Defendant’s base offense level
would have been 26, pursuant to U.S.S.G. § 2D1.1.
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career offender in light of recent Supreme Court and Eleventh Circuit precedent.

The district court denied Defendant’s motion, concluding that, because Defendant

was sentenced as a career offender, he was ineligible for a sentence reduction.

      Defendant now appeals from that decision, arguing that he was eligible for a

sentence reduction pursuant to Amendment 782. In particular, he asserts that he is

not a career offender because recent Supreme Court and Eleventh Circuit precedent

dictate that his predicate offenses are not crimes of violence. Additionally,

Defendant argues that the district court erred by concluding that it lacked authority

to reduce his sentence on the basis that he was sentenced as a career offender.

Because he received a sentence below the guideline range, he contends that he was

sentenced, at least in part, on the sentencing range set forth in U.S.S.G. § 2D1.1.

II. DISCUSSION

      We review de novo a district court’s legal conclusions on the scope of its

authority under § 3582(c)(2). United States v. Jones, 548 F.3d 1366, 1368 (11th

Cir. 2008). Under § 3582(c)(2), a district court may modify a term of

imprisonment when the original sentencing range has subsequently been lowered

as a result of an amendment to the Guidelines by the Sentencing Commission. 18

U.S.C. 3582(c)(2). To be eligible for a sentencing reduction under § 3582(c)(2), a

defendant must identify an amendment to the Sentencing Guidelines that is listed

in U.S.S.G. § 1B1.10(d). U.S.S.G. §1B1.10(a)(1). A defendant is not eligible for a


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sentence reduction if a guideline amendment “does not have the effect of lowering

the defendant’s applicable guideline range.” Id. § 1B1.10(a)(2)(B); id. § 1B1.10,

comment. (n.1(A)).

      Amendment 782 reduced the base offense level for most drug offenses by

two levels. See id. § 1B1.10(d); U.S.S.G. App. C., Amend. 782 (2014).

Amendment 782 did not make any changes to U.S.S.G. § 4B1.1, the career

offender guideline. See U.S.S.G. App. C., Amend. 782.

      When a defendant is sentenced as a career offender, his base offense level is

determined under § 4B1.1, not under the Drug Quantity Table set forth in

§ 2D1.1(c). U.S.S.G. § 4B1.1; United States v. Moore, 541 F.3d 1323, 1327 (11th

Cir. 2008). In Moore, we considered whether defendants who were sentenced as

career offenders under § 4B1.1 were eligible for § 3582(c)(2) relief in light of

Amendment 706, which lowered the § 2D1.1(c) base offense levels for certain

quantities of crack cocaine. 541 F.3d at 1325. We held that the defendants did not

qualify for § 3582(c)(2) relief because Amendment 706 had no effect on their

applicable guideline ranges, which had been calculated under § 4B1.1. Id. at

1327–28, 1330; see also United States v. Lawson, 686 F.3d 1317, 1321 (11th Cir.

2012) (concluding that Moore remained binding precedent and that Amendment

750 did not lower the guideline range for career offenders).




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      Here, the district court did not err when it concluded that Defendant was not

eligible for a sentence reduction. Defendant’s total offense level and applicable

guideline range were not based on the drug quantity offense levels in § 2D1.1, but

instead were based on the career offender level in § 4B1.1. The downward

variance Defendant received does not change the fact that his applicable guideline

range was based on the career offender guideline. Indeed, the commentary to

§ 1B1.10 defines “applicable guideline range” as the guideline range based on the

offense level and criminal history category calculated before consideration of any

variance. See U.S.S.G. § 1B1.10, comment. (n.1(A)). Because Defendant’s

guideline range was not based on the drug quantity guidelines, Amendment 782

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

U.S.S.G. § 1B1.10(a)(2)(B); see also Lawson, 686 F.3d at 1321; Moore, 541 F.3d

at 1327–30. Section 3582(c)(2) therefore does not authorize a reduction in

sentence.

      Although Defendant also challenges the validity of his career offender

designation, his arguments on this point are outside the scope of a § 3582(c)(2)

proceeding. See United States v. Bravo, 203 F.3d 778, 780–81 (11th Cir. 2000)

(stating that in a § 3582(c)(2) proceeding “only the amended guideline is changed.

All other guideline application decisions made during the original sentencing

remain intact.” (quotation omitted)); see also Dillon v. United States, 560 U.S. 817,


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831 (2010) (holding that the alleged sentencing errors that the Defendant sought to

correct were not affected by the applicable guideline amendment and were

therefore outside the scope of the § 3582(c)(2) proceedings). Accordingly, the

district court committed no error in concluding that Defendant was ineligible for a

sentence reduction under § 3582(c)(2) and Amendment 782.

      AFFIRMED.




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