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                                                        [DO NOT PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 14-12231
                       Non-Argument Calendar
                     ________________________

             D.C. Docket No. 5:91-cr-00010-CAR-CHW-2



UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                               versus

JIMMY BERNARD BARKLEY,
a.k.a. J.B.,

                                                        Defendant-Appellant.


                     ________________________

                           No. 14-12255
                       Non-Argument Calendar
                     ________________________

             D.C. Docket No. 5:91-cr-00010-CAR-CHW-2



UNITED STATES OF AMERICA,
              Case: 14-12231    Date Filed: 06/23/2015   Page: 2 of 10


                                                                 Plaintiff-Appellee,

                                     versus

JIMMY BERNARD BARKLEY,
a.k.a. J.B.,

                                                               Defendant-Appellant.

                           ________________________

                   Appeals from the United States District Court
                       for the Middle District of Georgia
                          ________________________

                                  (June 23, 2015)

Before HULL, MARCUS and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

      Jimmy Barkley, a federal prisoner proceeding pro se, appeals the district

court’s denial of his motions for a sentence reduction, based on Amendments 591,

706, 711, and 750 to the Sentencing Guidelines. After review, we affirm.

                           I. BACKGROUND FACTS

A.    1991 Conviction and 1992 Sentences

      In 1991, after a jury trial, Barkley was convicted of conspiring to possess

cocaine base using individuals under the age of 18, in violation of 21 U.S.C.

§§ 845b and 846 (Count 1); possessing with intent to distribute cocaine base, in

violation of 21 U.S.C. § 841(a)(1) (Count 2); and using a firearm in relation to a

drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count 3).

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      Barkley’s presentence investigation report (“PSI”) grouped Counts 1 and 2,

pursuant to U.S.S.G. § 3D1.2(b). Count 3, the firearm offense, required a

consecutive five-year sentence to any sentence imposed on Counts 1 and 2. The

PSI initially determined that the total offense level for Counts 1 and 2 was 35

based on the drug quantity involved and increased by one additional offense level

for the use of minors. See U.S.S.G. § 2D1.2(a)(2) (1991) (setting the offense level

for drug offenses involving minors as the offense level from the Drug Quantity

Table in § 2D1.1 plus one offense level). The PSI calculated 12 criminal history

points, which resulted in a criminal history category of V. See U.S.S.G. ch. 5, pt.

A (Sentencing Table) (1991).

      However, because Barkley qualified as a career offender pursuant to

U.S.S.G. § 4B1.1, the PSI assigned Barkley a total offense level of 37, which was

greater than the offense level of 35 under § 2D1.2(a)(2). See U.S.S.G. § 4B1.1(A)

(1991) (providing for an offense level of 37 for offenses with a statutory maximum

of life if it is greater than the otherwise applicable offense level). Based on

Barkley’s career-offender status, the PSI also assigned a criminal history category

of VI. Id. (providing for a criminal history category of VI in every case) Thus,




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based on Barkley’s career-offender status, the PSI stated that Barkley’s guidelines

range was 360 months to life in prison. 1

       Barkley objected to the PSI’s recitation of the offense conduct (paragraphs 9

through 25), maintaining that he had “no involvement” in the charged offenses,

and objected to the PSI’s drug quantity amount (paragraph 37) used to determine

his base offense level under § 2D1.1’s Drug Quantity Table. Barkley did not

object to his designation as a career offender or to his offense level and guidelines

range as calculated under § 4B1.1 (paragraphs 65, 66 and 72).

       At his April 1992 sentencing, Barkley advised the district court that the PSI

Addendum correctly noted his objections, and he continued to deny his

involvement in the charged offenses. Barkley also asked for the “minimum

sentence,” pointing out that he had arrived in the Macon area only in the final

weeks of the charged conspiracy and was not a ringleader.

       Without explicitly ruling on Barkley’s factual objections, adopting the PSI,

or calculating the applicable guidelines range, the district court imposed concurrent

life sentences on Counts 1 and 2, followed by the mandatory, consecutive five-year

sentence on Count 3. The district court explained, however, that it was

“sentencing [Barkley] to the top of the guidelines” because of “the magnitude of


       1
        If the career offender provision had not applied, Barkley’s initial offense level of 35 and
criminal history category of V would have yielded a guidelines range of 262 to 327 months in
prison. See U.S.S.G. ch. 5, pt. A (Sentencing Table) (1991).
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the crime that [Barkley was] involved in and the role that [Barkley] played.” The

district court asked for objections to “anything that the Court has done in the way

of sentencing,” and there were none.

       Shortly thereafter, the district court entered a judgment consistent with its

oral pronouncement. In its statement of reasons, the district court stated that it

adopted the PSI’s factual findings and guidelines calculations, and found that the

total offense level was 37, the criminal history category was VI, and the guidelines

range was 360 months to life in prison, plus 60 consecutive months for Count 3.

The district court further indicated that it had imposed a sentence within the

guidelines range “based on the seriousness of the offense and prior criminal

conduct.” This Court affirmed Barkley’s convictions and sentences on appeal.

B.     Section 3582(c)(2) Motions in 2011

       In 2011, Barkley filed a pro se 18 U.S.C. § 3582(c)(2) motion to reduce his

sentence based on Amendment 706, as amended by Amendment 711, which

lowered the offense levels for cocaine base offenses in § 2D1.1’s Drug Quantity

Table.2 Barkley’s § 3582(c)(2) motion also relied on Amendment 591, which

clarified that the enhanced penalties for drug offenses involving minors applied

only where the offense of conviction (rather than uncharged relevant conduct) is

       2
        Specifically, Amendment 706 lowered the base offense level for most cocaine base
offenses by two levels, and Amendment 711 altered the method for determining drug quantity
outlined in Amendment 706 when multiple drugs were involved. See U.S.S.G. app. C. amends.
706, 711.
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referenced in § 2D1.2. See United States v. Moreno, 421 F.3d 1217, 1219 (11th

Cir. 2005); U.S.S.G. app. C, amend. 591.

       The district court denied Barkley’s § 3582(c)(2) motion, concluding that he

was ineligible for a sentence reduction because “[i]t has been previously

determined that [Barkley] is a Career Offender pursuant to USSG § 4B1.1.”

Barkley filed a pro se motion for reconsideration, arguing that the district court

never found that he was a career offender. While his motion for reconsideration

was pending, Barkley filed a second pro se § 3582(c)(2) motion, this time citing

Amendment 750, which changed the base offense levels for cocaine base offenses

in the Drug Quantity Table to conform to the Fair Sentencing Act of 2010. See

U.S.S.G. app. C., amend. 750. Then, Barkley filed an amended, counseled

§ 3582(c)(2) motion that argued, inter alia, that it was not possible to determine

from the record whether Barkley was sentenced as a career offender, and thus he

was eligible for a sentence reduction.3

       In May 2014, the district court denied Barkley’s motion for reconsideration

of his first, pro se § 3582(c)(2) motion. The district court concluded that there was

“ample evidence in the record” that Barkley was sentenced as a career offender.

The district court recounted that the sentencing court sentenced Barkley within the

career offender guidelines range as calculated in the PSI and adopted that range in

       3
        Amendments 591, 706, and 750 are all retroactively applicable and may be enforced
through a § 3582(c)(2) motion. See U.S.S.G. § 1B1.10(c), (d).
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its Statement of Reasons in the written judgment. In a separate order, the district

court denied Barkley’s second, counseled § 3582(c)(2) motion, again finding that

Barkley was not entitled to a sentence reduction because the record was clear that

Barkley was sentenced as a career offender.

                                 II. DISCUSSION

      Under § 3582(c)(2), the district court has the authority to reduce a

defendant’s prison sentence if it was “based on a sentencing range that has

subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C.

[§] 994(o).” 18 U.S.C. § 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1). If,

however, the defendant’s sentencing range is not lowered by the retroactively

applicable guideline amendment, the district court has no authority to reduce the

defendant’s sentence. United States v. Moore, 541 F.3d 1323, 1330 (11th Cir.

2008); U.S.S.G. § 1B1.10(a)(2)(B). The Guidelines commentary explains that a

reduction under § 3582(c)(2) is not authorized where “an amendment . . . is

applicable to the defendant but the amendment 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 cmt. n.1(A). For this

reason, defendants who were convicted of cocaine base offenses but sentenced as

career offenders are not eligible for § 3582(c)(2) relief based on amendments to

U.S.S.G. § 2D1.1’s Drug Quantity Table because these defendants’ “sentences


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were based on the guideline ranges applicable to career offenders under § 4B1.1”

and their “base offense levels under § 2D1.1 played no role in the calculation of

these ranges.” Moore, 541 F.3d at 1327 (involving a § 3582(c)(2) motion based on

Amendment 706).4

       Here, Barkley is not eligible for a § 3582(c)(2) sentence reduction based on

Amendments 591, 706, and 750. Even assuming arguendo that the district court’s

oral pronouncement of Barkley’s sentence, standing alone, was ambiguous, other

evidence in the record makes clear that the district court sentenced Barkley as a

career offender. See United States v. Khoury, 901 F.2d 975, 977 (11th Cir. 1990)

(explaining that where the district court’s oral pronouncement of the sentence is

ambiguous, the reviewing court may consider extrinsic evidence, including the

commitment order, to discern the district court’s intent). Specifically, the district

court stated at sentencing that it was imposing life sentences at “the top of the

guidelines,” and the guidelines range calculated in the PSI pursuant to § 4B1.1’s

career offender provision was 360 months to life imprisonment. Further, the

district court’s Statement of Reasons in the written judgment stated that the district

court had adopted the PSI and then calculated the guidelines range in accordance

with career offender provision, finding a base offense level of 37 and a criminal



       4
        “We review de novo a district court’s conclusions about the scope of its legal authority
under 18 U.S.C. § 3582(c)(2).” United States v. Jones, 548 F.3d 1366, 1368 (11th Cir. 2008).
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history category of VI. We readily conclude that the district court’s intent was to

sentence Barkley as a career offender. 5

       Barkley’s sentencing range and ultimate sentence were based on the offense

level of 37 from § 4B1.1(A), and not on his initial base offense level of 35 from

§ 2D1.2 and the Drug Quantity Table in § 2D1.1, the provisions affected by

Amendments 591, 706, and 750. Thus, those amendments did not lower his

applicable guidelines range. Because Barkley’s total sentence was not “based on”

an amended guidelines provision, he is ineligible for a § 3582(c)(2) sentence

reduction.

       Barkley argues that the district court procedurally erred by not calculating

his amended base offense level under U.S.S.G. § 2D1.2 and the Drug Quantity

Table before denying his § 3582(c)(2) motion. See United States v. Bravo, 203

F.3d 778, 780 (11th Cir. 2000) (describing two-step process for evaluating a

§ 3582(c)(2) motion in which the district court first recalculates the amended

guidelines range using the new base offense level and then decides whether to

exercise its discretion to impose a sentence within the new sentencing range or

retain the original sentence). Barkley’s argument fails because he overlooks that


       5
         While Barkley now challenges his career-offender designation, he cannot challenge that
determination in his § 3582(c)(2) proceeding. See United States v. Bravo, 203 F.3d 778, 780
(11th Cir. 2000) (explaining that all original sentencing determinations other than the amended
guidelines provision remain unchanged in a § 3582(c)(2) proceeding); 18 U.S.C. § 3582(c)(2)
(limiting proceedings to cases in which a retroactive guidelines amendment affects the applicable
sentencing range).
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the first step under Bravo requires the district court to recalculate the amended

guidelines range keeping all other guideline decisions intact, including the decision

to apply the career offender guideline in § 4B1.1. Id. at 780. By virtue of § 4B1.1,

Barkley’s guidelines range did not change. As such, it was unnecessary for the

district court to specify Barkley’s amended base offense level under § 2D1.2 in its

orders.

      In sum, because Barkley’s total sentence is not “based on” an amended

guidelines provision, he was ineligible for a sentence reduction. Accordingly, the

district court properly denied his § 3582(c)(2) motions and his motion for

reconsideration.

      AFFIRMED.




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