          Case: 14-14872   Date Filed: 07/15/2015   Page: 1 of 10


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-14872
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 4:01-cr-00047-MW-CAS-1



UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                              versus

ROBERT HALL,

                                                     Defendant-Appellant.

                      ________________________

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

                             (July 15, 2015)

Before MARCUS, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Robert Hall, a federal prisoner currently serving a 360-month sentence of

imprisonment for two crack-cocaine offenses, appeals pro se from the district

court’s denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2).

Hall sought a sentence reduction based on Amendments 706 and 750 to the United

States Sentencing Guidelines, which reduced the base offense levels for crack-

cocaine offenses. The district court found Hall ineligible for § 3582(c)(2) relief

because he was sentenced as a career offender, under U.S.S.G. § 4B1.1, so the

amendments did not have the effect of lowering his amended guideline range. On

appeal, Hall contends that he was not, in fact, sentenced as a career offender and

that his sentence was instead based on the drug-quantity tables in U.S.S.G.

§ 2D1.1.    Hall also argues that applying U.S.S.G. § 1B1.10, as amended by

Amendment 759, violates the Ex Post Facto Clause, U.S. Const. art. I, § 9, cl. 3.

After careful review, we affirm.

                                            I.

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

legal authority under 18 U.S.C. § 3582(c)(2). United States v. Tellis, 748 F.3d

1305, 1308 (11th Cir. 2014). The factual findings underlying the district court’s

legal conclusions are reviewed for clear error. Id. A defendant bears the burden of

establishing his eligibility for a sentence reduction. Id.




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       Section 3582(c) grants district courts limited authority to modify a term of

imprisonment once it has been imposed. See id. Pursuant to § 3582(c)(2), the

court may reduce a defendant’s prison term if the defendant was “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). Only certain

amendments made retroactively applicable are eligible bases for a sentence

reduction under § 3582(c)(2). See U.S.S.G. § 1B1.10(a)(1), (d). 1

       Amendment 706 (effective Nov. 1, 2007) and Amendment 750 (effective

Nov. 1, 2011) both amended the drug-quantity table in § 2D1.1(c) to lower the

base offense levels for crack-cocaine offenses.2 U.S.S.G. App. C, Amends. 706 &

750. Both amendments have been made retroactively applicable. See id., Amends.

713 & 759; U.S.S.G. § 1B1.10(d).                Each amendment provided a two-level

reduction in base offense levels for crack-cocaine offenses.

       A district court generally must follow a two-step process in ruling on a

§ 3582(c) motion. United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). At

the first step, the court determines eligibility—whether the amendment lowered the

defendant’s applicable guideline range. See id. To do so, the court must identify

       1
          All citations to the United States Sentencing Guidelines Manual (“U.S.S.G.”) are to the
current version (Nov. 2014) unless otherwise noted.
       2
           The drug-quantity table in U.S.S.G. § 2D1.1 has since been amended again, on
November 1, 2014, to further reduce the base offense levels for drug offenses. See U.S.S.G.
Supp. to App. C, Amend. 782; U.S.S.G. § 2D1.1(c)(5). Amendment 782 is not retroactively
applicable until November 1, 2015. U.S.S.G. § 1B1.10(e)(1).
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the amended guideline range that would have applied if the eligible amendment

had been in effect at the time the defendant was sentenced.                U.S.S.G.

§ 1B1.10(b)(1). In making this determination, the court “shall substitute only” the

retroactive amendment for the corresponding guideline provisions originally

applied, leaving “all other guideline application decisions unaffected.” Id. In other

words, the court must ask whether the amendment, keeping all else constant, would

have lowered the defendant’s guideline range. If the amendment would have

lowered the defendant’s applicable guideline range, at the second step, the court

evaluates whether, in the court’s discretion, to resentence the defendant under the

amended guideline range or to retain the original sentence. Bravo, 203 F.3d at

781.

       Here, the pre-sentence investigation report (“PSR”) for Hall’s original

sentencing stated that, based on 680.86 grams of crack cocaine, Hall’s base offense

level was 36.    See U.S.S.G. § 2D1.1 (2001).       With a two-level increase for

obstruction of justice, Hall’s adjusted offense level was 38. However, the PSR

also classified Hall as a career offender under § 4B1.1. Under the career-offender

guidelines, if the offense level for a career offender from the table in § 4B1.1 “is

greater than the offense level otherwise applicable,” the offense level from the

table shall apply. U.S.S.G. § 4B1.1(b). Under the § 4B1.1 table, Hall’s offense

level was 37. Id. Consequently, the PSR set Hall’s total offense level at 38


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“[b]ecause the offense level calculated pursuant to Chapters Two and Three (38) is

greater than the offense level calculated pursuant to § 4B1.1 (37).” (PSR ¶ 38).

The district court adopted the PSR at sentencing.

      Hall argues that the PSR’s and district court’s use of the offense level of 38

shows that he was not sentenced as a career offender, even if he was eligible to be

sentenced as such. We respectfully disagree. See, e.g., Tellis, 748 F.3d at 1306-08

(rejecting similar arguments). As explained above, § 4B1.1(b) provides that the

offense level for a career offender being sentenced for a drug crime is the higher

value calculated using U.S.S.G. §§ 2D1.1 and 4B1.1. See U.S.S.G. § 4B1.1(b). If

Hall’s offense level under § 2D1.1 had been lower than 37, the career offender

offense level of 37 would have applied. See id. Because it was not, the offense

level of 38 applied. See id.

      Moreover, both the PSR and the transcript from the sentencing hearing

unambiguously show that Hall was sentenced as a career offender at his sentencing

in 2002. For example, the PSR states that “[a]ccording to § 4B1.1, the defendant

is considered a career offender,” and it reflects that Hall’s criminal history category

was changed from IV to VI because “the defendant is a career offender.” (PSR ¶¶

38, 48); see U.S.S.G. § 4B1.1(b) (“A career offender’s criminal history category in

every case under this subsection shall be Category VI.”). And at sentencing, the

court stated that Hall “qualifies as a career offender.”


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      Because Hall was sentenced as a career offender, Amendments 706 and 750

do not alter the sentencing range upon which his sentence was based.             Had

Amendments 706 and 750 been in effect at the time of Hall’s sentencing in 2002,

his base offense level would have been 32 instead of 36.                 See U.S.S.G.

§ 2D1.1(c)(1)(4) (2013).      Factoring in the original two-level increase for

obstruction of justice, his total offense level would have been 34. Because Hall’s

career offender offense level of 37 under § 4B1.1 would have been greater than his

offense level based on § 2D1.1, he would have been assigned a total offense level

of 37. See U.S.S.G. § 4B1.1(b). Based on a total offense level of 37 and a

criminal history category of VI, Hall’s advisory guideline range would have

remained at 360 months to life imprisonment. U.S.S.G. Sentencing Table (2001).

      “Where 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.” United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2009); see also

U.S.S.G. § 1B1.10(a)(2)(B) (providing that a § 3582(c)(2) reduction is not

authorized if the amendment “does not have the effect of lowering the defendant’s

applicable guideline range”). Moore remains good law. See Tellis, 748 F.3d at

1309-10; United States v. Lawson, 686 F.3d 1317, 1321 (11th Cir. 2012).

Although Amendments 706 and 750 reduced Hall’s base offense level, no sentence


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reduction is authorized because the sentencing range would remain the same. See

Moore, 541 F.3d at 1330; see also U.S.S.G. § 1B1.10(a)(2)(B). Hall’s attempts to

distinguish his case from Moore and Tellis are unpersuasive.

      Consequently, the district court properly found that it lacked authority under

§ 3582(c)(2) to grant Hall’s requested sentence reduction. See Tellis, 748 F.3d at

1309; Moore, 541 F.3d at 1330.

                                         II.

      Hall also contends that the district court committed an ex post facto violation

in denying his § 3582(c)(2) motion by “injecting” the career-offender enhancement

into his original sentence and by applying U.S.S.G. § 1B1.10, as amended by

Amendment 759 in November 2011. Hall argues that Amendment 759 effectively

eliminated the district court’s discretion to reduce his sentence and that the court

instead should have applied the Sentencing Guidelines in effect at the time of his

original sentencing.

      “The Ex Post Facto Clause bars laws that retroactively alter the definition of

crime or increase the punishment for criminal acts.” United States v. Lozano, 138

F.3d 915, 916 (11th Cir. 1998) (internal quotation marks omitted). Generally, to

prevail on an ex post facto claim, the defendant must show that (1) the law he

challenges operates retroactively, in that it applies to conduct occurring before its

enactment, and (2) it disadvantaged him. Id.


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      As discussed above, Hall initially was sentenced in 2002 as a career offender

under § 4B1.1. It was not retroactively applied. Therefore, there was no ex post

facto violation based on Hall’s career-offender status. See id.

      Section 1B1.10 is a binding policy statement governing motions for sentence

reductions under § 3582(c)(2). See Dillon v. United States, 560 U.S. 817, 826-28,

130 S. Ct. 2683, 2691-92 (2010). Amendment 759 made several changes to

§ 1B1.10 and its commentary. First, the amendment made parts of Amendment

750 retroactive. See U.S.S.G. App. C, Amend. 759. Second, it made changes to

the district court’s discretion to reduce a defendant’s sentence below the amended

guideline range. “Before Amendment 759, a district court had discretion to lower

a defendant’s sentence below the amended guidelines range subject to some

restrictions.” United States v. Colon, 707 F.3d 1255, 1258 (11th Cir. 2013). After

Amendment 759, a court cannot reduce a sentence below the amended guideline

range except in cases where the “original sentence imposed had been below the

applicable guidelines range because of a reduction based upon the defendant’s

substantial assistance to authorities.” Id. Amendment 759 also clarified how a

court is to determine the “applicable guideline range” in cases where a departure or

variance is applied, and it added an application note providing that the district

court is required to apply the version of U.S.S.G. § 1B1.10 that is in effect on the




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date on which it decides a § 3582(c)(2) motion. U.S.S.G. App. C, Amend. 759; see

U.S.S.G. § 1B1.10, cmt. nn.1(A) & 8.

      Hall’s ex post facto challenge is foreclosed by prior precedent. In Colon, we

held that Amendment 759 did not violate the Ex Post Facto Clause because its

“restriction on the district court’s discretion to reduce [the defendant’s] sentence

based on [a retroactive amendment] did not increase the punishment assigned by

law when the act to be punished occurred.”         707 F.3d at 1258 (concerning

Amendment 750) (internal quotation marks and emphasis omitted). Here, as in

Colon, the net effect of Amendments 706, 750, and 759 “was not to increase

[Hall’s] range of punishment above what it was at the time [he] committed [his]

crimes.” Id. at 1258-59. Hall’s guideline range after the amendments was the

same as it would have been without them. We are bound by our decision in Colon

unless and until it is overruled by this Court sitting en banc or by the Supreme

Court. United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008).

      Hall relies on the Supreme Court’s decision in Peugh v. United States, 133

S. Ct. 2072 (2013), which was decided after Colon. In Peugh, the Court held that

“there is an ex post facto violation when a defendant is sentenced under Guidelines

promulgated after he committed his criminal acts and the new version provides a

higher applicable Guidelines sentencing range than the version in place at the time

of the offense. 133 S. Ct. at 2078; id. at 2084 (“A retrospective increase in the


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Guidelines range applicable to a defendant creates a sufficient risk of a higher

sentence to constitute an ex post facto violation.”). Hall also relies on a district

court case from Illinois, which found that § 1B1.10(b)(2)(A) “violates the Ex Post

Facto Clause because it alters the formula used to arrive at the applicable reduced

Guidelines sentencing range pursuant to a Section 3582(c)(2) motion.” United

States v. King, No. 99-CR-952-1, 2013 WL 4008629, at *21 (N.D. Ill. Aug. 5,

2013).

      Peugh did not overrule and does not conflict with Colon. Neither Colon nor

this case involves, as in Peugh, a higher sentencing range than the version in place

at the time of the offense. Rather, the ex post facto challenge in Colon, as it is

here, was based on the district court’s application of the post-Amendment 759

version of § 1B1.10 and its restrictions on the court’s discretion to reduce a

sentence. See Colon, 707 F.3d at 1258. King is not binding and, of course, cannot

overrule a prior decision of this Court. Consequently, under Colon, there is no ex

post facto violation. See id. 1258-59.

                                         III.

      Accordingly, for the reasons stated above, we affirm the denial of Hall’s

§ 3582(c)(2) motion.

      AFFIRMED.




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