            Case: 11-16096   Date Filed: 07/25/2012   Page: 1 of 7

                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                      _________________________

                             No. 11-16096
                         Non-Argument Calendar
                      _________________________

                  D. C. Docket No. 9:97-cr-08046-KLR-2

UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                                   versus

CHAUNCEY TAYLOR,

                                                Defendant-Appellant.

                      _________________________

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

                              (July 25, 2012)

Before DUBINA, Chief Judge, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:
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      Appellant Chauncey Taylor appeals pro se the district court’s denial of his

motion to reduce sentence, filed pursuant to 18 U.S.C. § 3582(c)(2). A federal

jury found Taylor guilty of (1) conspiracy to possess with intent to distribute

cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846; and (2) possession

with intent to distribute cocaine base, in violation of 21 U.S.C. § 841 and 18

U.S.C. § 2. The district court sentenced him as a career offender to concurrent 262

month sentences on each count. On appeal, Taylor asserts that Amendment 750

reduces his base offense level under U.S.S.G. § 2D1.1 from 28 to 24, which he

asserts is 2 levels below the level 26 “required to trigger” his current career-

offender enhancement. He contends that the amendment dropped his career-

offender enhancement from 34 to 32 and that § 2D1.1 is a necessary part in

establishing the sentencing range, even under the career-offender enhancement.

He also argues that the 100-to-1 crack cocaine ratio was unconstitutional, had a

disparate effect on African-Americans, and Congress recognized this disparity in

passing the Fair Sentencing Act (“FSA”). Taylor urges retroactive application of

the FSA.

      “[W]e review de novo the district court’s legal conclusions regarding the

scope of its authority under the Sentencing Guidelines.” United States v. Moore,

541 F.3d 1323, 1326 (11th Cir. 2008) (quoting United States v. White, 305 F.3d

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1264, 1267 (11th Cir. 2002)) (per curiam). 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 does not have the effect of

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

      For a defendant to obtain a reduction in a term of imprisonment based on an

amendment to the Sentencing Guidelines, the relevant amendment must be listed

in U.S.S.G. § 1B1.10(c). See id. § 1B1.10(a)(1). Because they are listed in §

1B1.10(c), Parts A and C of Amendment 750 to the Sentencing Guidelines may

serve as the basis for a sentence reduction. Part A of Amendment 750 amended §

2D1.1 by revising the Drug Quantity Table in § 2D1.1(c), and reducing offense

levels associated with various amounts of crack cocaine. U.S.S.G. App. C,

Amend. 750, Pt. A, cross referencing U.S.S.G. App. C, Amend. 748 (2011). The

Amendment had no effect on § 4B1.1. See id.

      The district court must follow a two-step process in ruling on a § 3582(c)(2)

motion. See Dillon v. United States, ___ U.S. ___, 130 S. Ct. 2683, 2691 (2010);

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United States v. Bravo, 203 F.3d 778, 780–81 (11th Cir. 2000). First, the court

must recalculate the defendant’s sentence “by substituting the amended guideline

range for the originally applied guideline range, and then using that new base level

to determine what ultimate sentence it would have imposed.” Bravo, 203 F.3d at

780. All of the other guideline application decisions made during the original

sentencing proceeding remain unaffected. Id. Under the second step, the court

must decide whether, in its discretion, to retain the original sentence or to

resentence the defendant under the amended guideline range. Id. at 781.

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

on” the guideline 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, this court 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 lowered the base offense levels for certain quantities of

crack cocaine under U.S.S.G. § 2D1.1(c). Moore, 541 F.3d at 1325–27. This

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

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

under § 4B1.1. Id. at 1327–30.




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      Under the 1997 Sentencing Guidelines Manual, when a defendant qualified

as a career-offender and his offense statutory maximum was 25 years or more but

less than life, his offense level was 34. U.S.S.G. § 4B1.1(A), (B) (1997). The

commentary defined offense statutory maximum as “the maximum term of

imprisonment authorized for the offense of conviction that is a crime of violence

or controlled substance offense.” Id. § 4B1.1, comment. (n.2).

      This court has held that constitutional challenges to a defendant’s sentence

are the sort of “extraneous” issues that are not cognizable under § 3582(c)(2) and

must be pursued through a 28 U.S.C. § 2255 motion to vacate. Bravo, 203 F.3d at

782 (upholding a district court’s finding that it had no jurisdiction in a §

3582(c)(2) proceeding to consider the defendant’s claim that his sentence violated

the Eighth Amendment). Additionally, this court has held that the sentencing ratio

between crack and powder cocaine offenses does not violate equal protection

based on the disproportionate impact on African-American offenders. United

States v. Hanna, 153 F.3d 1286, 1287–89 (11th Cir. 1998).

      The FSA increased the amounts of crack cocaine required to trigger the

higher statutory-maximum sentences and the mandatory minimum sentences in 21

U.S.C. § 841(b)(1). Pub. L. No. 111-120, 125 Stat. 2372 (2010). Under the FSA,

the 10 year mandatory minimum and the life statutory maximum apply to offenses

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involving 280 grams or more of crack cocaine, and the 5 year mandatory minimum

and the 40 year statutory maximum apply to offenses involving 28 grams or more

of crack cocaine, respectively. See 21 U.S.C. § 841(b)(1)(A)(iii), (b)(1)(B)(iii)

(2011).

      As an initial matter, because constitutional issues are not cognizable under §

3582(c)(2), we conclude that Taylor’s constitutional challenge to the old 100-to-1

crack cocaine ratio was not properly before the district court. Furthermore, we

conclude that Taylor’s argument regarding the FSA’s retroactivity is outside the

scope of § 3582(c)(2).

      Moreover, the district court properly denied Taylor’s § 3582(c)(2) motion

because the career-offender enhancement was based entirely on the statutory

maximum sentence, not on Amendment 750. As a result of his prior convictions,

Taylor was classified as a career offender and his offense level, as determined by §

4B1.1, was based on the offense statutory maximum term of 40 years’

imprisonment. Under both the initial guidelines and the amended guidelines,

Taylor’s enhanced offense level as a career offender is 34. In other words,

Taylor’s offense level after the application of Amendment 750 is exactly what it

was at the time of his 1998 sentencing under the prior version of the guideline.

Thus, a reduction in his term of imprisonment is not authorized under § 3582(c)(2)

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because the amendment does not have the effect of lowering his guideline range.

Accordingly, we hold that Taylor is ineligible for relief under § 3582(c)(2), and

we affirm the district court’s order denying his motion to reduce sentence.

      AFFIRMED.




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