              Case: 13-11129     Date Filed: 08/30/2013   Page: 1 of 4


                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-11129
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 7:05-cr-00020-HL-RLH-3

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                        versus

DANIEL MITCHELL,

                                                     Defendant-Appellant.

                          __________________________

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

                                 (August 30, 2013)

Before TJOFLAT, PRYOR, and JORDAN, Circuit Judges.

PER CURIAM:

      Daniel Mitchell appeals the district court’s denial of his motion for a

reduction of sentence, filed pursuant to 18 U.S.C. § 3582(c)(2). After review of the

record and the parties’ briefs, we affirm.
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       On March 14, 2006, Mr. Mitchell pled guilty to distribution of cocaine base

in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). The pre-sentence

investigation report indicated that Mr. Mitchell’s total offense level was 24 based

upon the quantity of cocaine base (8.3 grams) as well an adjustment for being a

minor participant. 1 Mr. Mitchell, however, qualified as a career offender under

U.S.S.G. § 4B1.1, which subjected him to an enhanced total offense level of 31

and a sentencing guideline range of 188 to 235 months’ imprisonment. The district

court found Mr. Mitchell was a career offender, but sentenced him to 120 months’

imprisonment after granting the government’s motion for a downward departure

under U.S.S.G. § 5K1.1.

       On December 27, 2011, Mr. Mitchell filed a § 3582(c)(2) motion for a

sentence reduction based on Amendment 750 to the Sentencing Guidelines and the

Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2374 (2010). The

district court denied Mr. Mitchell’s motion because (1) “a defendant whose

original sentence was based on the Career Offender Guidelines . . . cannot receive

a sentence reduction pursuant to a Guideline amendment like Amendment 750,”

and (2) the Fair Sentencing Act does not apply to defendants sentenced before its

enactment. See D.E. 124 at 2-4. This appeal followed.


       1
         If Mr. Mitchell had been sentenced according the offense level for his crack cocaine
offense, his sentencing guideline range would have been 77-96 months’ imprisonment. See
U.S.S.G. Ch. 5, Pt. A (2004).
                                             2
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      “In a § 3582(c)(2) proceeding, ‘we 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). Under § 3528(c)(2),

a district court may reduce the terms of a defendant’s imprisonment if the sentence

was based on a sentencing range that has subsequently been lowered by the

Sentencing Commission. If, however, “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.” Moore, 541 F.3d at 1330.

      In this case, Mr. Mitchell was not eligible for a reduced sentence because he

was sentenced as a career offender under § 4B1.1. His sentencing guideline range

remained unchanged because § 4B1.1 was not affected by Amendment 750. See id.

at 1327 (holding that defendants sentenced as career offenders under § 4B1.1, even

those who receive a downward departures for substantial assistance, are not

entitled to sentence reductions based on an amendment to the base offense levels

for crack cocaine offenses in § 2D1.1); United States v. Lawson, 686 F.3d 1317,

1319 (11th Cir. 2012) (holding that Moore remains binding precedent and applies

to Amendment 750).

      Mr. Mitchell urges us to reconsider this interpretation of § 3582(c)(2)

because he believes that the Supreme Court’s decision in Freeman v. United


                                        3
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States, __ U.S. __, 131 S. Ct. 2685 (2011), has “call[ed] Moore’s narrow

interpretation of the phrase ‘based on’ into question.” See Initial Brief at 8. We

have, however, already rejected that argument in a published decision. See Lawson,

686 F.3d at 1321 (interpreting Freeman and holding that “Moore remains binding

precedent because it has not been overruled”). And, under our prior precedent rule,

we are bound to follow Lawson “unless and until it is overruled by this court en

banc or by the Supreme Court.” United States v. Brown, 342 F.3d 1245, 1246 (11th

Cir. 2003).

      Mr. Mitchell’s claim for relief under the Fair Sentencing Act is similarly

foreclosed by our precedent. In United States v. Berry, 701 F.3d 374, 377 (11th

Cir. 2012), we held that the Fair Sentencing Act is not a guidelines amendment by

the Sentencing Commission and, therefore, cannot be the basis for a sentence

reduction under § 3582(c)(2). In addition, Mr. Mitchell was sentenced before the

effective date of the FSA, and it is not retroactively applicable to him. See id. (“We

agree with every other circuit to address the issue that there is ‘no evidence that

Congress intended [the FSA] to apply to defendants who had been sentenced prior

to the August 3, 2010 date of the Act's enactment.’”) (citation omitted).

      In sum, the district court correctly denied Mr. Mitchell’s § 3582(c)(2)

motion.

      AFFIRMED.


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