           Case: 15-10379   Date Filed: 07/02/2015   Page: 1 of 5


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-10379
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:00-cr-00978-JAL-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

OTTO RODRIGUEZ,

                                                         Defendant-Appellant.

                      ________________________

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

                              (July 2, 2015)

Before TJOFLAT, HULL and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Otto Rodriguez, appearing pro se, appeals the District Court’s denial of his

motion to reduce sentence, pursuant to 18 U.S.C. § 3582(c)(2), which was based

on Amendment 782 to the Sentencing Guidelines. Rodriguez contends that that he

was sentenced pursuant to U.S.S.G. § 2D1.1, and that regardless of his status as a

career offender under U.S.S.G. § 4B1.1, he is automatically eligible for a reduced

sentence pursuant to Amendment 782. He also argues that amendments to

U.S.S.G. § 1B1.10 made after his conviction eliminated his opportunity to reduce

his sentence under Amendment 782, thereby violating the Ex Post Facto Clause.1

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

authority under § 3582(c)(2).” United States v. Lawson, 686 F.3d 1317, 1319

(11th Cir. 2012) (per curiam). A court may only reduce a term of imprisonment in

limited circumstances, including when a defendant “has been sentenced to a term

of imprisonment based on a sentencing range that has subsequently been lowered

by the Sentencing Commission . . . , if such a reduction is consistent with

applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. §

3582(c)(2).

      The Sentencing Commission’s policy statement on retroactive reduction of

sentences, § 1B1.10, provides:

      In a case in which a defendant is serving a term of imprisonment, and
      the guideline range applicable to that defendant has subsequently been

      1
          U.S. Const. art. I, § 9, cl. 3.
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      lowered as a result of an amendment to the Guidelines Manual listed
      in subsection (d) below, the court may reduce the defendant’s term of
      imprisonment as provided by 18 U.S.C. § 3582(c)(2). As required by
      18 U.S.C. § 3582(c)(2), any such reduction in the defendant’s term of
      imprisonment shall be consistent with this policy statement.

U.S.S.G. § 1B1.10(a)(1). A reduction of a term of imprisonment is not consistent

with this policy statement, and therefore is not authorized by § 3582(c)(2), if the

retroactive amendment does not have the effect of lowering the defendant’s

applicable guideline range because another guideline or statutory provision

controls. Id. § 1B1.10(a)(2)(B) & cmt. n.1(A).

      Amendment 782 reduced by two levels the base offense levels that apply to

most drug offenses listed in § 2D1.1(c). See U.S.S.G. app. C, Amend. 782 (2014).

The amendment applies retroactively to orders with an effective date of November

1, 2015, or later. See id., Amend. 788 (adding Amendment 782 to § 1B1.10(d)’s

list of retroactively applicable guideline amendments and directing that, if the court

orders a reduced term of imprisonment, the effective date of the court’s order must

be November 1, 2015, or later). Amendment 782 did not make any changes to

§ 4B1.1, the career-offender guideline. See id., Amend. 782.

      The offense level for a career offender is determined by § 4B1.1, rather than

§ 2D1.1, and a career offender automatically receives a criminal history category

of VI. U.S.S.G. § 4B1.1(b); accord U.S.S.G. § 4B1.1 (2001). When a defendant

has been sentenced as career offender under § 4B1.1, his base offense level under


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§ 2D1.1 plays no role in the calculation of his guideline range. Lawson, 686 F.3d

at 1320. “[When] 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.” Id. (quoting United States v. Moore, 541 F.3d 1323, 1330 (11th Cir.

2008)).

      Here, the district court did not err in denying Rodriguez’s § 3582(c) motion.

Although Rodriguez’s initial base offense level was 28, pursuant to § 2D1.1(c)(6),

his guideline sentencing range was based upon his status as a career offender,

pursuant to § 4B1.1. Thus, any change to his initial base offense level as a result

of Amendment 782 would not change his guideline sentencing range because the

range was based solely upon § 4B1.1. See U.S.S.G. § 1B1.10(a)(2)(B) & cmt.

n.1(A); Lawson, 686 F.3d at 1321. Moreover, there is no merit to his contention

that post-conviction amendments to § 1B1.10 violated the Ex Post Facto Clause.

The amendments did not increase the range of punishment applicable to Rodriguez

above what it was at the time he committed his crimes. See United States v. Colon,

707 F.3d 1255, 1258 (11th Cir 2103) (“[The Ex Post Facto Clause] prohibits ‘the

imposition of punishment more severe than the punishment assigned by law when

the act to be punished occurred.’” (quoting Weaver v. Graham, 450 U.S. 24, 30,

101 S. Ct. 960, 965, 67 L. Ed. 2d 17 (1981)).


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AFFIRMED.




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