            Case: 14-15732   Date Filed: 07/30/2015   Page: 1 of 7


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-15732
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:08-cr-60229-WJZ-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

EDWARD JEREMAINE WHITFIELD,

                                                          Defendant-Appellant.

                       ________________________

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

                              (July 30, 2015)

Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       Defendant Edward Jeremaine Whitfield, proceeding pro se, appeals the

district court’s denial of his request 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 2009, Defendant pled guilty to conspiracy to possess with the intent to

distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1) and 846. In

the plea agreement, Defendant and the Government agreed that Defendant’s

offense involved at least 50 grams, but less than 150 grams, of cocaine base, and at

least 500 grams, but less than 2 kilograms, of cocaine.

       After he entered his guilty plea, the probation office prepared Defendant’s

Presentence Investigation Report (“PSR”). The PSR indicated that Defendant was

a career offender under § 4B1.1, because he had one prior conviction for a crime of

violence and three prior convictions for controlled substance offenses. Because the

statutory maximum penalty for the present offense was life imprisonment, 1

Defendant’s career offender status resulted in an offense level of 37. The PSR then

applied a three-level acceptance-of-responsibility reduction, pursuant to § 3E1.1(a)

and (b), yielding a total offense level of 34. Defendant qualified for a criminal

       1
          Had Defendant not been a career offender, the PSR indicated that Defendant’s base
offense level would have been 30, under U.S.S.G. §§ 2D1.1(c)(4) & 2D1.1, comment.
(n.10(D)(i)), and that Defendant would have been subject to a three-level manager or supervisor
enhancement, yielding an adjusted offense level of 33.
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history category of VI, based on both his numerous criminal convictions and on his

career offender criminal status. With a total offense level of 34 and a criminal

history category of VI, Defendant’s guideline range was 262-327 months’

imprisonment.

      At sentencing, the district court overruled Defendant’s objection to the

career offender enhancement, but nonetheless varied downward and sentenced him

to 216 months’ imprisonment. In January 2012, Defendant moved for a sentence

reduction under § 3582(c)(2) and Amendment 750 of the Sentencing Guidelines,

which amendment had retroactively reduced the base offense levels for crack

cocaine. U.S.S.G. App. C (Nov. 2011), Amend. 750, 759. The district court

denied Defendant’s motion, finding that he was not eligible for a sentence

reduction because his offense level had been dictated by his status as a career

offender, under U.S.S.G. § 4B1.1, not by the quantity of drugs attributed to him.

Accordingly, Amendment 750, which operated only to reduce an offense level

calculated based on drug quantity, had no effect on Defendant’s Guidelines’

calculation.

      In November 2014, Defendant moved for a sentence reduction under

§ 3582(c)(2) and Amendment 782 of the Sentencing Guidelines. Defendant argued

that the district court was free to disagree with the application of the career

offender guideline to his case and had the full discretion to reduce his sentence by


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whatever amount it deemed appropriate. The district court denied Defendant’s

motion ruling again that, as a career offender, Defendant was ineligible for a

sentence reduction. Defendant now appeals from that decision, arguing that

U.S.S.G. § 1B1.10, as amended by Amendment 759, violates the Ex Post Facto

Clause because the definition of “applicable guideline range” completely

eliminates his ability to obtain a sentence reduction and because the district court

erred by treating the § 1B1.10 policy statements as binding authority.

                                   II. Discussion

      We review de novo the district court’s conclusions about the scope of its

legal authority under § 3582(c)(2). United States v. Colon, 707 F.3d 1255, 1258

(11th Cir. 2013). We are bound by the opinion of a prior panel unless the Supreme

Court or this Court sitting en banc overrules that opinion. United States v. Lawson,

686 F.3d 1317, 1319 (11th Cir. 2012).

      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 sentence 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 reduction under § 3582(c)(2) if a guideline amendment “does not have the effect


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

§ 1B1.10, comment. (n.1(A)). The defendant’s “applicable guideline range” is the

guideline range that exists before any departure or variances have been applied.2

U.S.S.G. § 1B1.10, comment. (n.1(A)). The application of § 1B1.10 does not

violate the Ex Post Facto Clause so long as the effect of the post-conduct

Guidelines amendment does not increase the defendant’s punishment beyond what

it would have been without the amendment. Colon, 707 F.3d at 1258-59.

       Amendment 782, which is listed in § 1B1.10(d) and which became effective

November 1, 2014, reduced by two levels the base offense level for most drug

offenses. See U.S.S.G. § 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 faced the question of whether defendants who were

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

light of Amendment 706, which like Amendment 782, lowered the § 2D1.1(c) base

offense levels for certain quantities of crack cocaine. 541 F.3d at 1325. We held

       2
           This definition of “applicable guideline range” was added to § 1B1.10 by Amendment
759.
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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. Likewise, in Lawson, we concluded that Moore

remained binding precedent and that Amendment 750 did not lower the guideline

range for career offenders. Lawson, 686 F.3d at 1321.

      Based on our precedent, the district court did not err here when it denied

Defendant’s motion for a sentence reduction. To recap, 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.

Because his guideline range was not based on the drug quantity guidelines,

Amendment 782 did not lower the sentencing range upon which Defendant’s

sentence was based. See Lawson, 686 F.3d at 1321; Moore, 541 F.3d at 1327-30.

      Defendant’s challenges to § 1B1.10 are unavailing. His claim that § 1B1.10,

as amended by Amendment 759, violates the Ex Post Facto Clause is foreclosed by

our precedent. Section 3582(c)(2) explicitly incorporates applicable policy

statements issued by the Sentencing Commission, and we have previously rejected

the argument that the amendments to § 1B1.10 violated the Ex Post Facto Clause.

See 18 U.S.C. § 3582(c)(2); Colon, 707 F.3d at 1258-59. Like Colon, the effect of

Amendments 759 and 782 do not increase Defendant’s range of punishment above

what it was at the time he committed his crime. See Colon, 707 F.3d at 1258-59.


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Defendant’s argument that the policy statements in § 1B1.10 are not binding

authority in § 3582(c)(2) proceedings is likewise foreclosed by precedent. The

Supreme Court has concluded that United States v. Booker, 543 U.S. 220 (2005),

does not require a district court to treat §1B1.10 as nonbinding, and we have

previously relied on that Supreme Court precedent to indicate that § 1B1.10 is

binding in § 3582(c)(2) proceedings. Dillon v. United States, 560 U.S. 817, 821

(2010); United States v. Hippolyte, 712 F.3d 535, 538 n.11 (11th Cir. 2013).

Accordingly, the district court committed no error by complying with § 1B1.10

when denying Defendant’s motion, and we affirm the denial of Defendant’s

§ 3582(c)(2) motion.

      AFFIRMED.




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