           Case: 12-16098    Date Filed: 11/25/2013   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-16098
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 4:00-cr-00033-HL-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,


                                   versus


RAYMOND PRESCOTT,
a.k.a. Ram,

                                                          Defendant-Appellant.

                      ________________________

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

                            (November 25, 2013)

Before PRYOR, ANDERSON, and DUBINA, Circuit Judges.

PER CURIAM:
              Case: 12-16098     Date Filed: 11/25/2013    Page: 2 of 6


      Raymond Prescott appeals the district court’s denial of his motion to modify

his term of imprisonment, pursuant to 18 U.S.C. § 3582(c)(2). After careful

review, we affirm.

      Prescott argues that he is entitled to a sentence reduction notwithstanding his

status as a career offender, and that he should be resentenced based on the lowered

mandatory minimum and statutory maximum sentences under the Fair Sentencing

Act of 2010 (“FSA”). Citing to Freeman v. United States, 564 U.S. __, 131 S. Ct.

2685 (2011), he argues that his sentence was based on U.S.S.G. § 2D1.1(c), which

was amended by Amendment 750. Prescott argues that we should not rely on our

decision in United States v. Lawson, 686 F.3d 1317 (11th Cir.), cert. denied, __

U.S. __, 133 S. Ct. 568 (2012), in the instant case because it relies unduly on

Justice Sotomayor’s concurrence in Freeman, does not specifically address career

offenders, and lacks any in-depth analysis of the FSA’s background. Prescott

further argues that he was entitled to be resentenced under the FSA’s reduced

statutory penalties for crack-cocaine offenses. In his reply brief, Prescott argues

that United States v. Berry, 701 F.3d 374 (11th Cir. 2012), and United States v.

Hippolyte, 712 F.3d 535 (11th Cir. 2013), are distinguishable from his case.

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

its authority under § 3582(c)(2). Lawson, 686 F.3d at 1319. Section 3582(c)(2)

provides that a court may reduce a defendant’s sentence where the defendant is


                                          2
              Case: 12-16098    Date Filed: 11/25/2013    Page: 3 of 6


sentenced to a term of imprisonment based on a sentencing range that has

subsequently been lowered by the Sentencing Commission. 18 U.S.C. §

3582(c)(2); U.S.S.G. § 1B1.10(a)(1).

      In United States v. Moore, we held that a career offender is not entitled to §

3582(c)(2) relief where a retroactive guideline amendment reduces his base offense

level, but does not alter the sentencing range upon which his sentence was based.

541 F.3d 1323, 1330 (11th Cir. 2008). In Lawson, we rejected a career offender’s

argument that, in light of the Supreme Court’s decision in Freeman, the holding of

Moore was overruled, such that he was entitled to a sentence reduction based on §

3582(c)(2) and Amendment 750, despite his sentence being based on the career

offender guideline. Lawson, 686 F.3d at 1319–21. In Freeman, the question

before the Supreme Court was whether defendants who entered into Federal Rule

of Criminal Procedure 11(c)(1)(C) plea agreements were eligible for § 3582(c)(2)

relief. Freeman, 564 U.S. at __, 131 S. Ct. at 2690. Neither the plurality opinion

nor Justice Sotomayor’s concurrence in Freeman addressed defendants who were

assigned a base offense level under one guideline section, but who were ultimately

assigned a total offense level and guideline range under § 4B1.1. Lawson, 686

F.3d at 1321. Thus, Freeman did not overrule Moore’s holding that a career

offender was not entitled to § 3582(c)(2) relief where his guideline range was not

lowered by a retroactive amendment because it was not “clearly on point” to the


                                          3
              Case: 12-16098     Date Filed: 11/25/2013   Page: 4 of 6


issue that arose in Moore. Id. (quotation omitted). Accordingly, we held that

Lawson, a career offender, was not entitled to relief based on Amendment 750 and

§ 3582(c)(2), as his guideline range based on § 4B1.1 was not reduced by

Amendment 750. Id.

      In Berry, we addressed the applicability of Amendment 750 and the FSA in

the context of a § 3582(c)(2) proceeding. 701 F.3d at 376–77. Berry was

convicted of a crack cocaine offense and sentenced in 2002, and his initial

guideline range was 360 months to life imprisonment, which was based on his

status as a career offender under § 4B1.1(b), not on the drug quantity tables in §

2D1.1. Id. at 376. On appeal, we held that the district court did not have the

authority to grant Berry’s § 3582(c)(2) motion because Amendment 750 had no

effect on Berry’s initial guideline range of 360 months to life imprisonment or his

guideline sentence of life imprisonment. Id. at 377. In addition, we rejected

Berry’s argument that he was eligible for a § 3582(c)(2) reduction under the FSA,

determining that the FSA was not an amendment to the Guidelines by the

Sentencing Commission, but rather a statutory change by Congress. Id. Thus, it

did not serve as a basis for a § 3582(c)(2) sentence reduction in Berry’s case. Id.

Even assuming that Berry could bring his FSA claim in a § 3582(c)(2) motion, his

claim still failed because he was convicted and sentenced in 2002 and the FSA did

not apply retroactively to his 2002 sentence. Id.


                                          4
              Case: 12-16098     Date Filed: 11/25/2013   Page: 5 of 6


      In Hippolyte, we rejected the defendant’s arguments (1) that Congress

intended for the FSA to apply to drug-crime sentence reductions under §

3582(c)(2) and (2) that it would be inconsistent to apply the more lenient

sentencing ranges of Amendment 750, but keep the harsh pre-FSA mandatory

minimums in a § 3582(c)(2) proceeding involving a defendant sentenced before the

FSA’s enactment. 712 F.3d at 539–40, 542. We determined that Berry was

indistinguishable from Hippolyte’s case, and, thus, the FSA’s reduced statutory

penalties did not apply. Id. at 542.

      Here, Prescott was not eligible for a reduced sentence under Amendment

750 because he was sentenced as a career offender under § 4B1.1. See Moore, 541

F.3d at 1330. Amendment 750, which only amended § 2D1.1, did not operate to

lower Prescott’s Guidelines range of 262 to 327 months’ imprisonment.

Regardless of the effect of Amendment 750, as a career offender, Prescott

remained subject to a total offense level of 34 in light of his statutory maximum

sentence of life imprisonment. See 21 U.S.C. § 841(b)(1)(A)(iii) (2000); U.S.S.G.

§ 4B1.1. The asserted reduction in Prescott’s Guidelines range was wrought solely

by the FSA, which is not a Guidelines amendment and, therefore, cannot serve as

the basis for a sentence reduction. See Berry, 701 F.3d at 377. Moreover, Prescott

cannot benefit from the FSA because he was sentenced prior to its enactment. See

Pub. L. No. 111-220, 124 Stat. 2372; Berry, 701 F.3d at 377–78.


                                         5
              Case: 12-16098     Date Filed: 11/25/2013    Page: 6 of 6


      The FSA does not apply to Prescott’s case, and he has not shown that he is

entitled to a § 3582(c)(2) sentence reduction because he has not shown that an

amendment to the Guidelines has the effect of reducing his sentence. Accordingly,

the district court did not err in denying Prescott’s § 3582(c)(2) motion.

      AFFIRMED.




                                          6
