          Case: 15-15165   Date Filed: 06/07/2016   Page: 1 of 9


                                                        [DO NOT PUBLISH]




           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-15165
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 0:04-cr-60275-JIC-3



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                versus

ANTHONY JEROME BELL,
a.k.a. Amp,
a.k.a. Ant,
a.k.a. Huckabuck,

                                                        Defendant-Appellant.

                     ________________________

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

                             (June 7, 2016)
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Before TJOFLAT, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Anthony Jerome Bell appeals the district court’s denial of his motion to

reduce his sentence of 360 months in prison based on Amendment 782 to the

Sentencing Guidelines. See 18 U.S.C. § 3582(c)(2). Bell was sentenced as a

career offender under United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.1,

but the offense level used to calculate his guideline range was derived using the

drug-quantity table in U.S.S.G. § 2D1.1, because the § 2D1.1 offense level was

greater than the offense level under the career-offender table.           See U.S.S.G.

§ 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

from the table in this subsection shall apply.”).

      Relying on that quirk, Bell argues that he is eligible for a sentence reduction

because Amendment 782, which lowered the base offense levels in the drug-

quantity table, lowered the guideline range on which his sentence was based. He

also argues that, under current law, he is not a career offender because the prior

convictions used to enhance his sentence no longer qualify as predicate crimes of

violence. After careful review, we affirm the denial of Bell’s § 3582(c)(2) motion.




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                                          I.

      After a jury trial, Bell was convicted of conspiracy to possess with intent to

distribute more than 50 grams of crack cocaine, in violation of 21 U.S.C. § 846,

and possession with intent to distribute crack cocaine, in violation of 21 U.S.C.

§ 841. Bell’s presentence investigation report (“PSR”) calculated his base offense

level at 38 using the drug-quantity table in § 2D1.1(c). The PSR added a two-level

increase for possession of a firearm and a two-level increase for obstruction of

justice, yielding an adjusted offense level of 42.

      The PSR also determined that Bell was a career offender, under U.S.S.G.

§ 4B1.1, for having at least two prior felony convictions for crimes of violence.

Relevant to this appeal, Bell had two Florida state convictions for carrying a

concealed weapon.      Due to his career-offender status, Bell’s criminal history

category rose from V to VI. See U.S.S.G. § 4B1.1(b) (“A career offender’s

criminal history category in every case . . . shall be Category VI.”).

      Under the career-offender table, Bell’s offense level was 37, because the

statutory maximum penalty for Bell’s instant convictions was life imprisonment.

See U.S.S.G. § 4B1.1(b)(1). However, because the offense level from the career-

offender table (level 37) was less than the offense level for the underlying offense

(level 42), the PSR followed the instructions of § 4B1.1(b) and used the greater of




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the two levels (level 42) to determine Bell’s guideline range. This established a

guideline range of 360 months’ to life imprisonment.

      At Bell’s sentencing in 2005, the district court overruled Bell’s objection to

the career-offender enhancement and stated that Bell “qualifie[d] as a career

offender.” The court also overruled Bell’s other objections to the PSR and adopted

the guideline range calculated therein. The court sentenced Bell to a total term of

360 months in prison. We affirmed Bell’s sentence on direct appeal, concluding

that his two prior convictions for carrying a concealed weapon constituted crimes

of violence and that the § 4B1.1 career-offender enhancement was properly

applied. United States v. Bell, 218 F. App’x 885, 898-99 (11th Cir. 2007).

      In 2014, the Sentencing Commission issued Amendment 782, which further

reduced the offense level for certain drug-trafficking offenses. In 2015, Bell filed

the present counseled § 3582(c)(2) motion. Bell argued that even though he was

found to be a career offender, he was not sentenced as such, so he should be able to

benefit from reductions to the drug-quantity table in § 2D1.1(c) on which his

guideline range was based. He also noted that in 2008, this Court reversed its prior

precedent, in light of the Supreme Court’s decision in Begay v. United States, 553

U.S. 137, 128 S. Ct. 1581 (2008), and held that “the crime of carrying a concealed

firearm may no longer be considered a crime of violence under the Sentencing

Guidelines.” United States v. Archer, 531 F.3d 1347, 1351-52 (11th Cir. 2008).


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      The district court denied Bell’s § 3582(c)(2) motion. The court agreed with

the government that Bell was ineligible for a sentence reduction due to his career-

offender status. The court also noted that Bell could not challenge his status as a

career offender in the limited § 3582(c)(2) proceeding.      Bell now brings this

appeal.

                                        II.

      We review de novo a district court’s legal conclusions about the Sentencing

Guidelines and the scope of its authority under 18 U.S.C. § 3582(c)(2). United

States v. Davis, 587 F.3d 1300, 1303 (11th Cir. 2009).

      A district court may modify a defendant’s term of imprisonment if the

defendant was sentenced based on a sentencing range that has subsequently been

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

§ 3582(c)(2) motion, a district court must recalculate the applicable guideline

range by substituting only the amended guideline for the one originally used.

United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000); see U.S.S.G.

§ 1B1.10(b)(1).     “All other guideline application decisions made during the

original sentencing remain intact.” United States v. Vautier, 144 F.3d 756, 760

(11th Cir. 1998).

      The overarching purpose of § 3582(c)(2) is to “give[] the defendant an

opportunity to receive the same sentence he would have received if the guidelines


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that applied at the time of his sentencing had been the same as the guidelines that

applied after the amendment.” United States v. Glover, 686 F.3d 1203, 1206 (11th

Cir. 2012). In other words, the “goal is to treat a defendant sentenced before the

amendment the same as those sentenced after the amendment.” Id.

      A defendant is not eligible for a sentence reduction if the retroactively

applicable amendment “does not have the effect of lowering the defendant’s

applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). Therefore, “[w]here a

retroactively applicable guideline amendment reduces a defendant’s base offense

level, but does not alter the sentencing range upon which his or her sentence was

based, § 3582(c)(2) does not authorize a reduction in sentence.” United States v.

Moore, 541 F.3d 1323, 1330 (11th Cir. 2008).

      Here, the district court properly found that Bell was ineligible for a sentence

reduction due to his career-offender status. It is undisputed that the court found

Bell to be a career offender at his original sentencing, even if that determination

now appears to be clearly erroneous. Therefore, we must re-apply the career-

offender guideline, § 4B1.1, when determining the effect of Amendment 782. See

Vautier, 144 F.3d at 760. Section 4B1.1(b) provides, in relevant part, “[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 from the table in this

subsection shall apply.” U.S.S.G. § 4B1.1(b). The career-offender table sets forth


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various offense levels based on the severity of the underlying offense, by reference

to the maximum sentence authorized by statute. See id.

      At Bell’s original sentencing, the district court used the offense level

“otherwise applicable”—the one calculated using § 2D1.1—because it was greater

than the career-offender offense level.       See id.   After Amendment 782, and

assuming Bell’s calculations are accurate, that is no longer the case. Bell’s offense

level under the career-offender table (level 37) is now greater than the offense level

otherwise applicable (level 36). As a result, if Amendment 782 had been in effect

at the time of Bell’s original sentencing, the court would have used level 37 instead

of level 36 to calculate his guideline range. See Glover, 686 F.3d at 1206. Using

an offense level of 37, along with the original criminal history category of VI,

establishes the same guideline range of 360 months’ to life imprisonment.

Accordingly, Bell is not eligible for a reduction because, while Amendment 782

reduced his base offense level, the amendment did not have the effect of lowering

his applicable guideline range. See U.S.S.G. § 1B1.10(a)(2)(B); see also Moore,

541 F.3d at 1330.

      Bell contends that re-applying the career-offender guideline, when it clearly

no longer applies under Archer, violates the goal of § 3582(c)(2), which is “to treat

a defendant sentenced before the amendment the same as those sentenced after the

amendment.” Glover, 686 F.3d at 1206. He asserts that a defendant today “with


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the same record as Mr. Bell would not be sentenced as a career offender.” True

enough, but Bell’s argument misunderstands the limited scope of the § 3582(c)(2)

proceeding.

      The Supreme Court has made clear, consistent with our long-settled

precedent, that § 3582(c)(2) “does not authorize a sentencing or resentencing

proceeding.” Dillon v. United States, 560 U.S. 817, 825, 130 S. Ct. 2683, 2690

(2010); Bravo, 203 F.3d at 781. Rather, the § 3582(c)(2) proceeding is limited to

determining the effect, and potentially giving the defendant the benefit, of a

retroactively applicable amendment to the Sentencing Guidelines, leaving all other

original sentencing decisions unchanged. Bravo, 203 F.3d at 781; see U.S.S.G.

§ 1B1.10. In that way, § 3582(c)(2) permits courts to treat defendants who were

sentenced both before and after the amendment the same, but only with respect to

that specific, retroactively applicable amendment. See Glover, 686 F.3d at 1206

(“The purpose of § 3582(c)(2) is to give a defendant the benefit of a retroactively

applicable amendment to the guidelines.”). Treating Bell the same as a similarly

situated defendant sentenced today in all respects would convert the limited

proceeding authorized by § 3582(c)(2) into a full resentencing.

      While we understand Bell’s efforts to achieve some relief from his career-

offender status, § 3582(c)(2) does not authorize the relief he seeks.      Section

3582(c)(2) “does not grant to the court jurisdiction to consider extraneous


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resentencing issues” such as his challenge to the application of the career-offender

enhancement. Bravo, 203 F.3d at 782; see Dillon, 560 U.S. at 831, 130 S. Ct. at

2694 (under § 3582(c)(2), “any mistakes committed at the initial sentencing are

imposed anew if they are not corrected”). The rule of lenity does not apply in

these circumstances because the statute is not ambiguous. See Dillon, 560 U.S. at

825-27, 831, 130 S. Ct. at 2690-91, 2694.

      In sum, we affirm the denial of Bell’s § 3582(c)(2) motion because, due to

his status as a career offender, Amendment 782 did not have the effect of lowering

his applicable guideline range. See U.S.S.G. § 1B1.10(a)(2)(B).

      AFFIRMED.




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