            Case: 12-14037   Date Filed: 05/10/2013   Page: 1 of 7




                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-14037
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 3:06-cr-00378-TJC-JBT-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                versus

JERMAINE BROWN,

                                                          Defendant-Appellant.

                       ________________________

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

                              (May 10, 2013)

Before DUBINA, Chief Judge, MARCUS and MARTIN, Circuit Judges.

PER CURIAM:
              Case: 12-14037     Date Filed: 05/10/2013    Page: 2 of 7


      Appellant Jermaine Brown, a federal prisoner, appeals from the district

court’s denial of his motion to reduce his sentence, filed pursuant to 18 U.S.C.

§ 3582(c)(2) and based on Amendment 750 to the Sentencing Guidelines, which

reduced offense levels in cases involving crack cocaine. After pleading guilty in

2007 to possession with intent to distribute cocaine and crack cocaine, in violation

of 21 U.S.C. § 841(a)(1) and (b)(1)(C), the district court found Brown responsible

for 12.5 grams of cocaine and 2.85 grams of crack cocaine. Because of his

criminal history, the district court deemed Brown a career offender and gave him a

guideline range of 151 to 188 months’ imprisonment. At sentencing, the district

court emphasized that Brown’s criminal history showed him to be a habitual,

repeat offender, a “career offender” in lay terms as well as the technical, legal

sense. Nevertheless, the district court granted a downward variance and sentenced

Brown to 110 months’ imprisonment. Brown later filed the present motion to

reduce his sentence, which the district court denied because it had sentenced

Brown as a career offender.

      On appeal, Brown argues that the district court erred in denying his

§ 3582(c)(2) motion because his sentence was not “based on” the career offender

Guidelines given that the district court granted a downward variance. He

acknowledges that in United States v. Moore, we concluded that career offenders

were not eligible for relief under § 3582(c)(2) and Amendment 706 to the


                                          2
              Case: 12-14037      Date Filed: 05/10/2013   Page: 3 of 7


Sentencing Guidelines, which similarly reduced the base offense levels for crack

cocaine offenses. United States v. Moore, 541 F.3d 1323, 1327‒28 (11th Cir.

2008). However, he argues that the Supreme Court’s decision in Freeman v.

United States, 564 U.S. __, 131 S. Ct. 2685 (2011) (plurality opinion), undermined

Moore. In Freeman, the Court explained that “§ 3582(c)(2) modification

proceedings should be available to permit the district court to revisit a prior

sentence to whatever extent the sentencing range in question was a relevant part of

the analytic framework the judge used to determine the sentence or to approve the

agreement.” Freeman, 564 U.S. at ___, 131 S. Ct. at 2692‒93. Finally, although

recently added commentary to § 1B1.10 of the Guidelines defines the term

“applicable guideline range” in the context of § 3582(c)(2) to be the guideline

range calculated by the district court before it applies any variance, Brown

contends this commentary improperly contradicts the Supreme Court’s decision in

Freeman.

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

[S]entencing [G]uidelines and the scope of its authority under 18 U.S.C.

§ 3582(c)(2).” United States v. Liberse, 688 F.3d 1198, 1200 n.1 (11th Cir. 2012).

Section 3582(c)(2) provides that a district court may modify a term of

imprisonment that was based on a sentencing range that has subsequently been

lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). A reduction,


                                           3
               Case: 12-14037     Date Filed: 05/10/2013   Page: 4 of 7


however, must be “consistent with applicable policy statements issued by the

Sentencing Commission.” Id. at 1201 (internal quotation marks omitted). The

applicable policy statements, found in U.S.S.G. § 1B1.10, provide that “[a]

reduction in the defendant’s term of imprisonment . . . is not authorized under 18

U.S.C. § 3582(c)(2) if . . . [the] amendment . . . does not have the effect of

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

The commentary to the 2011 version of the Guidelines defines “applicable

guideline range” as “the guideline range that corresponds to the offense level and

criminal history category . . . which is determined before consideration of any

departure . . . or any variance.” Id. § 1B1.10, comment. (n.1(A)).

      Amendment 750 to the Sentencing Guidelines amended the drug quantity

table in § 2D1.1(c) to reduce offense levels in crack cocaine cases. See U.S.S.G.

App. C, Amend. 750. It was made retroactive by Amendment 759, effective

November 1, 2011. See id., Amend. 759.

      We have addressed whether Amendment 706, which was effective on

November 1, 2007, authorized reductions under § 3582(c)(2) for defendants who

had been convicted of crack cocaine offenses, but had been sentenced under the

career offender guidelines. See Moore, 541 F.3d at 1325. We explained that

§ 3582(c)(2) only authorizes reductions to sentences that were “based on

sentencing ranges that were subsequently lowered.” Id. at 1327. As Amendment


                                           4
              Case: 12-14037     Date Filed: 05/10/2013   Page: 5 of 7


706 did not lower the career offender offense levels, we concluded that it did not

lower the sentencing range upon which a career offender’s sentence had been

based. Id. We also explained that the commentary to § 1B1.10 “[made] clear” that

a § 3582(c)(2) reduction is not authorized where an amendment lowers a

defendant’s base offense level for the offense of conviction but not the career

offender sentencing range under which the court sentenced the defendant. Id. at

1327-28; see also U.S.S.G. § 1B1.10, comment. (n.1(A)).

      In Freeman, the Supreme Court, in a plurality opinion, held that a defendant

sentenced under a plea agreement recommending a specific sentence or sentencing

range pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) could, in certain

circumstances, still qualify for a reduced sentence under 18 U.S.C. § 3582(c)(2) if

the sentence or sentencing range in the plea agreement was “based on” the

amended guideline range. See Freeman, 564 U.S. at __, 131 S. Ct. at 2690.

Moreover, the Court noted that its approach comported with the applicable

guidelines policy statement at the time. See id. at __, 131 S. Ct. at 2692-93.

      We have made clear that Freeman did not overrule or abrogate Moore, and

that Freeman is inapplicable to a defendant sentenced as a career offender. United

States v. Lawson, 686 F.3d 1317, 1320-21 (11th Cir.), cert. denied, 133 S.Ct. 568

(2012); see also U.S.S.G. § 1B1.10, comment. (n.1(A)) (stating that reduction is

not authorized if “the amendment . . . does not have the effect of lowering the


                                          5
              Case: 12-14037     Date Filed: 05/10/2013   Page: 6 of 7


defendant’s applicable guideline range because of the operation of another

guideline or statutory provision”). In Lawson, we explained that Freeman did not

address the situation in which defendants were assigned a base offense level under

one guideline section, but were ultimately assigned a total offense level and

guideline range under § 4B1.1. See Lawson, 686 F.3d at 1321. Therefore, a

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

offender was still not eligible for a § 3582(c)(2) reduction under Amendment 750.

See id.

      We conclude from the record here that the district court correctly concluded

that Brown was ineligible for a sentence reduction under § 3582(c)(2) because it

sentenced him as a career offender, and, thus, his sentence was not based on the

later-amended crack cocaine guideline. Brown’s arguments to the contrary are

unavailing. First, Brown’s argument that he was not sentenced as a career offender

because the district court granted a downward variance is unconvincing. The

commentary to § 1B1.10 defines “applicable guideline range” as the calculated

range before any variance. See § 1B1.10, comment. (n.1(A)). Second, we reject

Brown’s argument that this commentary improperly contradicts Freeman because

the plurality in Freeman acknowledged that its decision comported with applicable

guideline policy statements at the time, and, moreover, § 3582(c)(2) explicitly




                                         6
              Case: 12-14037    Date Filed: 05/10/2013     Page: 7 of 7


incorporates the guideline policy statements. Accordingly, we affirm the district

court’s denial of Brown’s motion to reduce his sentence.

      AFFIRMED.




                                         7
