     Case: 12-30195     Document: 00511993526         Page: 1     Date Filed: 09/20/2012




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

                                                                            FILED
                                                                        September 20, 2012
                                     No. 12-30195
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MARVIN EUGENE CHAPPELL,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 3:03-CR-30013-3


Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Marvin Eugene Chappell, federal prisoner # 11775-035, appeals the
district court’s denial of a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2)
based upon the amendments to the Guidelines that implemented the Fair
Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372.
        Pursuant to a written plea agreement, Chappell pleaded guilty to
conspiracy to distribute 50 grams or more of cocaine base. In the presentence
report (PSR), the probation officer found that Chappell was responsible for the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-30195

equivalent of 13,782 kilograms of marijuana since the trafficking conduct
involved both cocaine base and marijuana. See United States Sentencing
Guidelines (USSG) § 2D1.1, cmt n.10. She determined his base offense level to
be 36. The probation officer also determined that Chappell’s base offense level
was 37 under the career offender provision of the USSG § 4B1.1 because of
Chappell’s prior Texas convictions for aggravated rape and delivery of a
controlled substance. Thus, the higher career offender range governed. See id.
§ 4B1.1(b). Applying a two-level reduction for acceptance of responsibility, she
calculated Chappell’s total offense level at 35. Based upon Chappell’s total
offense level of 35 and criminal history category of VI, the probation officer
determined that Chappell’s guidelines sentence range was 292-365 months of
imprisonment and 10 years of supervised release. The district court adopted the
guidelines sentence range set forth in the PSR and sentenced Chappell to 292
months of imprisonment and 10 years of supervised release.
      In 2011, the district court considered whether to reduce Chappell’s
sentence pursuant to § 3592(c)(2) based upon the amendments to the Guidelines
that implemented the Fair Sentencing Act of 2010, which reduced the base
offense levels for crack cocaine offenses and made those reductions retroactive.
The district court denied relief, finding that Chappell was ineligible for a
sentence reduction because he was sentenced as a career offender. Chappell
timely appealed.
      Citing Freeman v. United States, 131 S. Ct. 2685 (2011), Chappell argues
that he was eligible for a sentence reduction under § 3582(c)(2) even though he
was sentenced as a career offender. We review the district court’s ruling for
abuse of discretion. United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009).
      The district court did not abuse its discretion by denying relief in this case.
Our precedent holds that the guidelines amendment lowering the base offense
levels for crack cocaine offenses does “not apply to prisoners sentenced as career
offenders.” United States v. Anderson, 591 F.3d 789, 791 (5th Cir. 2009). In

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                                    No. 12-30195

Anderson, the defendant was assessed a higher offense level because he was
determined to be a career offender and not because he had an underlying crack
cocaine offense. “Because the career offender base level exceeded the general
base level, the career offender sentencing range governed.” Id. at 790; see also
USSG § 4B1.1(b) (“[I]f the offense level for a career offender from the table in
this subsection is greater than the offense level otherwise applicable, the offense
level . . . in this subsection shall apply.”)
      Two years later in Freeman, a four-justice plurality opined that a sentence
based upon a guidelines range that was subsequently lowered makes a
defendant eligible for a sentence reduction under § 3582(c)(2) even if the
defendant agreed to the sentence in a plea agreement entered into under Federal
Rule of Criminal Procedure 11(c)(1)(C). Freeman, 131 S. Ct. at 2692-93. Justice
Sotomayor concurred in the plurality’s opinion and opined that defendants are
eligible for a sentence reduction under § 3582(c)(2) if the plea agreement
expressly based the sentence on a guidelines range that was subsequently
lowered. Id. at 2695 (Sotomayor, J., concurring).
      This Court’s holding in Anderson is consistent with Freeman; in Anderson,
the defendant’s sentence was based on his status as a career offender, and not
on the crack cocaine offense, because the career offender base level exceeded the
general base level that would otherwise have applied. See Anderson, 591 F.3d
at 790. Thus, his sentence was not “based on” his crack cocaine conviction, and
it would not have changed following the Fair Sentencing Act amendments.
      Likewise, Chappell was sentenced based on the career offender provision,
not based on the base sentence for crack cocaine. Because the career offender
provision established a base level higher than that for crack cocaine, the Fair
Sentencing Act’s guidelines amendments do not affect his sentence under
Freeman.
      Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED.                   The

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                                 No. 12-30195

Government’s alternative motion for an extension of time in which to file a brief
is DENIED as moot.




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