                    Case: 12-11837         Date Filed: 10/12/2012   Page: 1 of 8

                                                                       [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-11837
                                        Non-Argument Calendar
                                      ________________________

                            D.C. Docket No. 4:89-cr-04013-WS-CAS-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,

                                                 versus

THEODORE COCKRAN,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

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

                                           (October 12, 2012)

Before HULL, MARTIN and FAY, Circuit Judges.

PER CURIAM:

         Theodore Cockran, proceeding pro se, appeals the district court’s denial of
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his motion for a sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2), and the

denial of his subsequent motion “to alter or amend [the] judgment.” On appeal,

Cockran argues that: (1) he is entitled to a sentence reduction under Amendment

750 to the Sentencing Guidelines based on the drug quantity amount charged in

his indictment; and (2) the 18 U.S.C. § 3553(a) sentencing factors supported the

imposition of a reduced sentence. For the reasons set forth below, we affirm the

district court’s denial of Cockran’s § 3582(c)(2) motion.

                                          I.

      In 1993, Cockran pled guilty to one count of conspiracy to possess with

intent to distribute more than 50 grams of cocaine base, in violation of 21 U.S.C.

§§ 841 and 846. According the presentence investigation report (“PSI”), from

1987 to 1989, law enforcement officials investigated Cockran’s role as the “head

of a large crack cocaine distribution organization in the Tallahassee, Florida area.”

During the investigation, Josephine Rucker, a witness who police officers

questioned in relation to a 1987 drug seizure, stated that Cockran was “active in

dealing large quantities (kilograms) of crack cocaine.” Additionally, Austin

Sanders, a cooperating witness, stated that Cockran “could handle multi-kilo

deals,” and that he “consistently handled kilograms over a period of eight

months.” Finally, Rance Conner, a drug courier in the drug organization,

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indicated that Cockran had “handled kilograms of cocaine more than once, and

possibly as many as five times in 1988.”

      Based on the 1987 Sentencing Guidelines Manual, the probation officer

assigned a base offense level of 36, pursuant to U.S.S.G. § 2D1.1(a)(3). The PSI

noted that the government believed that Cockran was involved with “numerous

kilograms of cocaine base” in the conspiracy, and the base offense level was 36

because Cockran was accountable for more than 500 grams of crack cocaine. He

received a four-level enhancement for his leadership role, pursuant to U.S.S.G.

§ 3B1.1(a), a two-level enhancement for obstruction of justice, and a two-level

reduction for acceptance of responsibility, under U.S.S.G. § 3E1.1(a). Thus, his

total offense level was 40. Based on an offense level of 40 and a criminal history

category of II, Cockran’s guideline range was 324 to 405 months’ imprisonment.

      During the sentencing hearing, Cockran did not object to the drug quantity,

and as a result, the court did not address any drug quantity issues. The court

adopted the PSI’s guideline calculations, and sentenced Cockran to 324 months’

imprisonment.

      In December 2011, Cockran filed the instant pro se § 3582(c)(2) motion

based on Amendment 750. In his motion, Cockran asserted that, because he pled

guilty to possessing 50 grams of cocaine base as charged in the indictment, he was

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eligible for a sentence reduction. Further, he alleged that his counsel objected to

the PSI during sentencing. Applying Amendment 750 would result in a guideline

range of 88 to 120 months’ imprisonment. Finally, Cockran asserted that several

§ 3553(a) sentencing factors warranted a reduction.

      The district court denied Cockran’s § 3582(c)(2) motion. The court

explained that Cockran was sentenced “pursuant to the 1987 Guidelines, which

attributed a base offense level of 36 (the highest level at that time) to conduct

involving more than 500 grams of cocaine base.” However, the PSI indicated that

Cockran was active in dealing “kilograms” of cocaine. Cockran did not object to

the drug quantities described in the PSI, and accordingly, the sentencing court did

not address the issue of drug quantity. The sentencing court, however, adopted the

factual findings in the PSI. Applying the revised guidelines to “the multi-kilo

drug quantities” described in the PSI, Cockran’s base offense level would still be

at least a 36. Because his guideline range was not lowered by Amendment 750,

the court lacked jurisdiction to reduce Cockran’s sentence under § 3582(c)(2).

      Cockran moved to amend or alter the judgment, essentially requesting

reconsideration of the denial of his § 3582(c)(2) motion. The district court denied

Cockran’s motion to alter or amend the judgment, finding that nothing in the

motion affected the court’s prior decision as to his § 3582(c)(2) motion.

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                                         II.

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

its authority under the sentencing guidelines and its factfindings for clear error.

United States v. Davis, 587 F.3d 1300, 1303 (11th Cir. 2009). A court may only

modify a term of imprisonment in limited circumstances, including where a

defendant “has been 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). A defendant is not entitled to be resentenced under

§ 3582(c)(2) if the amendment “would not result in a lower base offense level and

guidelines range.” United States v. James, 548 F.3d 983, 986 (11th Cir. 2008).

      Additionally, § 3582(c)(2) does not grant the district court jurisdiction to

reconsider all original sentencing determinations. United States v. Bravo, 203

F.3d 778, 781 (11th Cir. 2000). In fact, “all original sentencing determinations

remain unchanged with the sole exception of the guideline range that has been

amended since the original sentencing.” Id. Further, when an amendment does

not reduce a defendant’s sentencing range, and district court lacks authority to

grant a sentence reduction under § 3582(c)(2), the court need not examine the

§ 3553(a) sentencing factors. United States v. Webb, 565 F.3d 789, 793 (11th Cir.

2009).

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      In determining the applicable guideline range for purposes of a § 3582(c)(2)

motion, the district court is bound by the original sentencing court’s factual

determinations. United States v. Cothran, 106 F.3d 1560, 1563 n.5 (11th Cir.

1997) (affirming district court’s refusal to re-examine the number of marijuana

plants attributed to the defendant by the original sentencing court). The court

conducting the § 3582(c)(2) proceeding, however, does not make an

“impermissible new finding of fact” if it holds a defendant responsible for a drug

quantity that was (1) set forth in the original PSI, (2) not objected to by the

government or defendant, and (3) adopted by the original sentencing court. Davis,

587 F.3d at 1303-04 (affirming district court’s determination that defendant was

ineligible for relief based on the original sentencing court’s adoption of the PSI’s

factual finding that the offense involved at least 8 kilograms of crack cocaine,

even though the original court had not specified an exact quantity in excess of 1.5

kilograms).

      Amendment 750, effective November 1, 2011, made permanent an

amendment lowering the base offense levels for particular crack cocaine quantities

in U.S.S.G. § 2D1.1(c). See U.S.S.G. App. C, Amends. 748, 750. These

amendments altered the Drug Quantity Table in § 2D1.1(c) so that a base offense

level of 36 applies to cases involving at least 2.8 kilograms but less than 8.4

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kilograms of cocaine base. See id.; U.S.S.G. § 2D1.1(c)(1).

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

Cockran did not object to the drug quantity amounts or factual allegations in the

PSI, and the original sentencing court expressly adopted the PSI’s guideline

calculations and factual findings. The PSI assigned Cockran an offense level of

36, which at that time required a minimum drug quantity amount of 500 grams of

cocaine base. However, the undisputed factual allegations in the PSI supported

the district court’s factual finding that Cockran trafficked in at least 2.8 kilograms

of cocaine, as required for a base offense level of 36 under Amendment 750.

Specifically, the PSI indicated that: (1) Cockran was “active in dealing large

quantities (kilograms) of cocaine,” (2) he could handle “multi-kilo” deals; (3) he

had consistently handled kilograms of cocaine over several months; and (4) he had

“handled kilograms of crack cocaine more than once, and possibly as many as five

times in 1988.” As in Davis, although the district court did not specify an exact

quantity of cocaine, other than the minimum 500 gram requirement, the sentencing

court’s adoption of the PSI’s factual findings was sufficient to establish that

Cockran was responsible for dealing in multiple kilograms of cocaine. See Davis,

587 F.3d at 1303-04.

      Although Cockran alleges that his indictment only referenced an amount

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greater than 50 grams of cocaine, he never objected to the drug quantities

described in the PSI. Further, Cockran relies on the Supreme Court’s recent

decision in Freeman v. United States, __ U.S. ___, 131 S.Ct. 2685, 180 L.Ed.2d

519 (2011), but he fails to explain the relevance of Freeman to this appeal.

Freeman addressed whether a defendant who enters a Fed.R.Crim.P. 11(c)(1)(C)

plea agreement is eligible for a sentence reduction under § 3582(c)(2). See

Freeman, __ U.S. at __, 131 S.Ct. at 2691. In this case, however, the district court

did not deny Cockran’s motion for a sentence reduction because he entered a Rule

11 plea agreement, but instead, it found that his applicable guideline range was not

subsequently lowered by the Sentencing Commission. Finally, although Cockran

alleges that the § 3553(a) sentencing factors warranted a reduced sentence, the

district court was not required to consider those factors. See Webb, 565 F.3d at

793. Because the application of Amendment 750 would not result in a lower base

offense level or guideline range, Cockran was not entitled to a sentence reduction

under § 3582(c)(2). Accordingly, the district court did not err.

      For the foregoing reasons, we affirm the district court’s denial of Cockran’s

§ 3582(c)(2) motion.

      AFFIRMED.




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