           Case: 12-11477   Date Filed: 06/14/2013   Page: 1 of 4


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-11477
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:08-cr-00149-CB-M-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

ANTHONY LAMAR DOUGLAS,

                                                         Defendant-Appellant.

                       ________________________

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

                              (June 14, 2013)

Before TJOFLAT, MARTIN and BLACK, Circuit Judges.

PER CURIAM:
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      Anthony Douglas appeals the district court’s denial of his motion to reduce

his sentence under 18 U.S.C. § 3582(c)(2) based on Amendment 750 to the

Sentencing Guidelines. Douglas pled guilty to possession with intent to distribute

approximately 14.2 grams of cocaine base. The presentence investigation report

(PSI) classified Douglas as a career offender under U.S.S.G. § 4B1.1(a), which

resulted in a Guidelines range of 262 to 327 months’ imprisonment, and the district

court accepted those Guidelines calculations at sentencing. The Government filed

a motion for a downward departure, pursuant to U.S.S.G. § 5K1.1, based on

Douglas’s substantial assistance. The court granted the motion in part, noting that

Douglas had three prior drug convictions and needed to be punished for his

repeated conduct. The court sentenced him to 128 months’ imprisonment, to run

consecutively with a 16-month sentence for a related revocation of a prior term of

supervised release.

      Douglas asserts that, because he received a downward departure, he was not

sentenced as a career offender, and that his original base offense level was

controlling for § 3582(c)(2) purposes. He asserts the district court should have

ordered a new PSI, and should have considered the factors in 18 U.S.C. § 3553(a)

in ruling on his motion to account for his mitigating post-sentencing conduct.

      A district court’s legal conclusions regarding the scope of its authority under

the Sentencing Guidelines are reviewed de novo. United States v. Moore, 541 F.3d


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1323, 1326 (11th Cir. 2008). A district court may not reduce a defendant’s term of

imprisonment unless the defendant’s sentence was based upon a sentencing range

that the Sentencing Commission subsequently lowered, the district court considers

the 18 U.S.C. § 3553(a) factors, and the reduction is consistent with applicable

policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2).

A reduction is not consistent with the Sentencing Commission’s policy statements

if it is based on an amendment that does not have the effect of lowering the

defendant’s applicable guideline range. U.S.S.G. § 1B1.10(a)(2)(B).

      When a defendant is sentenced as a career offender, the sentence is “based

on” the Guidelines ranges applicable to career offenders under § 4B1.1, not the

levels set forth in § 2D1.1. U.S.S.G. § 4B1.1; Moore, 541 F.3d at 1327. 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 750, lowered the base offense levels for

certain quantities of crack cocaine under § 2D1.1(c). Moore, 541 F.3d at 1325-27.

We held the defendants did not qualify for § 3582(c)(2) relief because

Amendment 706 had no effect on their Guidelines ranges, which were calculated

under § 4B1.1. Id. at 1327-30. We recently reaffirmed Moore, and held that a

defendant who was convicted of a crack cocaine offense but sentenced as a career

offender remains ineligible for a § 3582(c)(2) reduction under Amendment 750.


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United States v. Lawson, 686 F.3d 1317, 1321 (11th Cir.), cert. denied, 133 S.Ct.

568 (2012).

      The record shows that Douglas was sentenced as a career offender.

Although he received a downward departure under § 5K1.1 for substantial

assistance, this departure did not alter the court’s determination that Douglas was a

career offender. Because Amendment 750 did not change his Guidelines range, a

new PSI would not have changed his Guidelines range, and the court could not

consider § 3553(a) factors, including any post-sentencing conduct. Thus, Douglas

was ineligible for a § 3582(c)(2) reduction in sentence, and the district court did

not err in denying Douglas’s motion to reduce his sentence.

      AFFIRMED.




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