                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  July 10, 2013
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 13-5024
          v.                                         (N. D. Oklahoma)
 LAWRENCE SAMUELS, JR., a/k/a                (D.C. No. 4:04-CR-00157-CVE-1)
 Michael Douglas Lewis,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
      Petitioner and appellant, Lawrence Samuels, Jr., appeals the dismissal of

his motion under 18 U.S.C. § 3582 to reduce his term of imprisonment for the

possession of crack cocaine. We affirm.



                                 BACKGROUND

      In 2005, Mr. Samuels pled guilty to possessing crack cocaine with the

intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). In

preparation for sentencing under the United States Sentencing Commission,

Guidelines Manual (“USSG”), the United States Probation Office prepared a

presentence report (“PSR”). The PSR noted that under USSG §2D1.1, 9.35 grams

of crack cocaine (the amount seized from Mr. Samuels) would ordinarily lead to a

base offense level of twenty-six. But, because Mr. Samuels was at least eighteen

years old at the time of the offense, the offense involved controlled substances,

and he had at least two prior felony convictions for controlled substance

violations, USSG §4B1.1 classified Mr. Samuels as a career offender.

      As a career offender, his base offense level was thirty-four. With a two-

level reduction for acceptance of responsibility, Mr. Samuels’ total offense level

was thirty-two. His career offender classification also placed him in criminal

history category VI. 1 A total offense level of thirty-two with a category VI


      1
       In any event, his seventeen criminal history points independently placed
him in a criminal history category of VI.

                                         -2-
criminal history yielded an advisory Guidelines sentencing range of 210 to 262

months. The district court sentenced Mr. Samuels to 210 months. Our court

affirmed Mr. Samuels’ conviction on direct appeal. United States v. Samuels, 493

F.3d 1187 (10th Cir. 2007).

      On August 3, 2010, the Fair Sentencing Act of 2010 (“FSA”) became

effective. It altered the statutory penalties applicable to criminal offenses

involving cocaine base or crack cocaine. On November 1, 2011, Amendment 750

retroactively implemented the FSA, reducing the disparity between crack and

powder cocaine sentences from 100:1 to 18:1. See USSG app. C, amend. 750

(effective Nov. 1, 2011). “The amendment altered the drug-quantity tables in the

Guidelines, ‘increasing the required quantity to be subject to each base offense

level in a manner proportionate to the statutory change to the mandatory

minimums effectuated by the FSA.’” United States v. Osborn, 679 F.3d 1193,

1194 (10th Cir. 2012) (quoting United States v. Curet, 670 F.3d 296, 309 (1st Cir.

2012)).

      On February 11, 2012, Mr. Samuels filed his § 3582 motion, seeking a

sentence reduction under Amendment 750. In his motion, Mr. Samuels argued

that the statutory penalty reductions brought about by the FSA and the Supreme

Court’s opinion in Freeman v. United States, 131 S. Ct. 2685 (2011), together

opened the door for the district court to reduce his sentence under § 3582(c).




                                          -3-
      The district court dismissed Mr. Samuels’ motion, finding that Freeman

was not applicable to this case. The court also held that “Amendment 750 does

not, by virtue of the § 4B1.1 career offender enhancement, change the calculated

guideline sentencing range.” Opinion & Order at 2, R. Vol. 1 at 25. The court

concluded that “[a]s the facts establish that defendant’s sentence is not based on a

sentencing range that has subsequently been lowered by the Sentencing

Commission, this Court is without jurisdiction to consider a reduction of sentence

under § 3582(c).” Id. at 26. This appeal followed.



                                   DISCUSSION

      We review a district court’s interpretation of a statute or the Guidelines de

novo. United States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997). We review a

district court’s decision to deny a reduction under § 3582(c)(2) for abuse of

discretion. United States v. Sharkey, 543 F.3d 1236, 1238 (10th Cir. 2008).

      “Federal courts generally lack jurisdiction to modify a term of

imprisonment once it has been imposed.” United States v. Graham, 704 F.3d

1275, 1277 (10th Cir. 2013) (citing Dillon v. United States, 130 S. Ct. 2683, 2687

(2010)). “But a district court may modify a sentence when it is statutorily

authorized to do so.” Id. Thus, “[u]nder 18 U.S.C. § 3582(c)(2), a district court

may, on a defendant’s motion, reduce a sentence ‘based on a sentencing range




                                         -4-
that has subsequently been lowered by the Sentencing Commission.’” Id.

(quoting 18 U.S.C. § 3582(c)(2)).

      Mr. Samuels seeks a sentence reduction based upon the circumstance that

the cocaine sentencing range he claims “drove” his sentence has been

subsequently lowered by Amendment 750. He is, as the government points out,

simply mistaken as to the effect of the Amendment and the Freeman case on his

particular sentence. Although Mr. Samuels’ base offense level for purposes of

calculating a sentencing range was initially determined based on the quantity of

crack cocaine he possessed, he was subsequently classified as a career offender,

and his initial offense level was replaced by the offense level applicable under the

career offender Guidelines, USSG §4B1.1. We have recognized that, although

Amendment 750 reduces offense levels applicable to crack cocaine offenses, it

has no effect on the career offender Guidelines under which Mr. Samuels was

sentenced:

      Although the underlying conviction in this case had to do with crack
      cocaine, Wilkerson’s sentence was calculated based on the
      interaction between 21 U.S.C. § 841(b)(1)(B), which provided for a
      statutory maximum sentence of life in prison for Wilkerson’s crime,
      and USSG §4B1.1(b), the career offender guideline. Subsequent
      changes to § 841(b)(1) do not apply to Wilkerson, as the FSA was
      not made retroactive. And Amendment 750 affected none of the
      above calculations.




                                         -5-
United States v. Wilkerson, 485 Fed. Appx. 318, 322 (10th Cir. 2012)

(unpublished) (further citation omitted). 2 See Sharkey, 543 F.3d at 1239 (noting

that Amendment 706, which lowered base offense levels for crack cocaine

offenses, had no effect on the career offender Guidelines in USSG §4B1.1).

      Mr. Samuels suggests that the district court erred in dismissing his motion,

partly because it treated the career offender provisions as mandatory instead of

advisory, whereas the Guidelines, since United States v. Booker, 543 U.S. 220

(2005), are advisory. Booker, however, does not apply to a motion for a

reduction in sentence under § 3582(c). See United States v. Pedraza, 550 F.3d

1218, 1220 (10th Cir. 2008) (“A resentencing proceeding is an entirely different

animal that does not implicate the Sixth Amendment concerns that drove the

Booker remedy.”). Furthermore, we perceive no basis for Mr. Samuels’ further

suggestion that the term “based on” in 18 U.S.C. § 3582(c)(2) is somehow

affected, in any relevant way, by Booker’s mandatory vs. advisory distinction.

      The Supreme Court’s decision in Freeman provides Mr. Samuels with no

assistance either. In Freeman, the defendant entered into a Fed. R. Crim. P.

11(c)(1)(C) plea agreement with the government, in which the parties agreed upon

a 106-month sentence, reflecting the bottom of the applicable advisory Guidelines

range. A plurality of the Supreme Court permitted a § 3582(c)(2) request for a

      2
       We note that, although unpublished decisions of our court are not to be
cited as precedent, we cite this unpublished case because we agree fully with its
reasoning.

                                        -6-
sentence reduction, stating that when an 11(c)(1)(C) plea agreement uses a

particular Guidelines sentencing range applicable to the charged offenses in

establishing the term of imprisonment, the defendant’s sentence is “based on” the

Guidelines range. The sentence could therefore be reduced under § 3582(c)(2)

when the Guideline range is reduced. As we stated in Graham, the plurality

opinion in Freeman provides that “when the Rule 11(c)(1)(C) plea is based on a

Guideline sentencing range that is retroactively amended, the defendant is entitled

to the amendment.” Graham, 704 F.3d at 1278 (citing Freeman, 131 S. Ct. at

2697-99).

      As applied to this case, Mr. Samuels can obtain no relief because he did not

enter into an 11(c)(1)(C) plea agreement with the government. Additionally, the

parties did not calculate an agreed-upon sentence based upon the crack cocaine

Guidelines. See id. Rather, Mr. Samuels’ sentence was based upon the career

offender Guidelines provisions; those Guidelines provisions have not been

lowered by a retroactive amendment.




                                        -7-
                                  CONCLUSION

      In short, the district court correctly concluded that it lacked jurisdiction to

consider Mr. Samuels’ § 3582 motion for a reduction in his sentence. For the

foregoing reasons, we AFFIRM the district court’s dismissal of this case.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




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