           Case: 12-14907   Date Filed: 04/23/2013   Page: 1 of 4


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-14907
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 9:06-cr-80126-DTKH-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,


                                  versus


BRYANT LEON COUNCIL,

                                                         Defendant-Appellant.

                      ________________________

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

                             (April 23, 2013)

Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:
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      Bryant Council, a federal prisoner convicted of possession of intent to

distribute at least five grams of crack cocaine, in violation of 21 U.S.C. §

841(a)(1), appeals the district court’s denial of his motion for a sentence reduction,

pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 750. Council argues that,

despite the fact that he was sentenced under the career offender provision, he is

eligible for a sentence reduction under § 3582(c)(2) because Amendment 750

reduced the sentencing range for the drug quantity for which he was held

responsible. He further argues that, because the Fair Sentencing Act of 2010

(FSA) reduced the statutory maximum sentence for his offense, which in turn

would have lowered Council’s base offense level and concomitant sentencing

guideline range, he is eligible for a sentence reduction under § 3582(c)(2).

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

its authority under § 3582(c)(2). United States v. Lawson, 686 F.3d 1317, 1319

(11th Cir.) (per curiam), cert. denied, 133 S. Ct. 568 (2012). Section 3582(c)(2)

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

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

subsequently been lowered by the Sentencing Commission. § 3582(c)(2); U.S.S.G.

§ 1B1.10(a)(1). Any reduction must be consistent with applicable policy

statements issued by the Sentencing Commission and must be based on a

retroactively applicable guideline amendment listed in § 1B1.10(c). Id. According


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to § 1B1.10, a sentence reduction is unauthorized under § 3582(c)(2) where an

amendment does not have the effect of lowering a defendant’s “applicable

guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).

      The FSA lowered the statutory mandatory minimum penalties for crack

cocaine offenses in 21 U.S.C. § 841(b). See Fair Sentencing Act of 2010, Pub. L.

No. 111-220 § 2(a), 124 Stat. 2372, 2372 (2010). In addition, the FSA directed the

Sentencing Commission to promulgate emergency amendments to bring the

Guidelines into conformity with its provisions “as soon as practicable.” Pub. L.

111-220 § 8, 124 Stat. at 2374. Pursuant to this directive, the Sentencing

Commission promulgated Amendment 750, which, in pertinent part, altered the

drug quantity tables of the guidelines, located in U.S.S.G. § 2D1.1, by increasing

the quantity of crack cocaine required to trigger each offense level. U.S.S.G. App.

C, amend. 750.

      A career offender’s offense level is determined by U.S.S.G. § 4B1.1(b),

rather than § 2D1.1. § 4B1.1(b). We have 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. See Lawson, 686 F.3d at 1320–21. We recently addressed the

applicability of Amendment 750 and the FSA in the context of an § 3582(c)(2)

proceeding, holding that the district court did not have the authority to grant a


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§ 3582(c)(2) motion where Amendment 750 had no effect on a defendant’s

advisory guideline range. See United States v. Berry, 701 F.3d 374, 377 (11th Cir.

2012) (per curiam). We further observed that “the FSA is not a guidelines

amendment by the Sentencing Commission, but rather a statutory change by

Congress, and thus it does not serve as a basis for a § 3582(c)(2) sentence

reduction.” Id.

      Here, the district court correctly denied Council’s § 3582(c)(2) motion.

Amendment 750 did not alter Council’s advisory guideline range because he was

sentenced as a career offender, and therefore he was not sentenced based on a

sentencing range that has subsequently been lowered by the Sentencing

Commission. Further, the FSA’s amendments to the statutory maximum penalties

for drug offenses cannot serve as the basis for a § 3582(c)(2) reduction.

Accordingly, we affirm.

      AFFIRMED.




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