              Case: 12-13273     Date Filed: 06/05/2013   Page: 1 of 5


                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-13273
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 8:03-cr-00288-SDM-MAP-9

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

KEVIN APPLEFIELD,

                                                               Defendant-Appellant.
                           ________________________

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

                                   (June 5, 2013)

Before CARNES, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:

      Kevin Applefield, a federal prisoner appearing with counsel, appeals the

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

reduction, pursuant to Amendment 750 to the Sentencing Guidelines. On appeal,
               Case: 12-13273     Date Filed: 06/05/2013    Page: 2 of 5


Applefield asserts that he is eligible for the full extent of Amendment 750 relief

because the district court erred when it reduced Applefield’s sentence based on his

alleged career offender guideline range from U.S.S.G. § 4B1.1(b) rather than an

offense level from the U.S.S.G. § 2D1.1, under which Applefield was originally

sentenced.

      We review de novo a district court’s legal conclusions in regard to the scope

of its authority under the Sentencing Guidelines. United States v. Moore, 541 F.3d

1323, 1326 (11th Cir. 2008). Facts contained in a PSI are deemed admitted for

sentencing purposes unless a party objects to them clearly and specifically at

sentencing. United States v. Davis, 587 F.3d 1300, 1303-04 (11th Cir. 2009) (18

U.S.C. § 3582(c)(2) proceeding context). The rule of lenity applies if a sentencing

guideline is ambiguous. United States v. Jeter, 329 F.3d 1229, 1230 (11th Cir.

2003). The rule of lenity requires a grievous ambiguity or uncertainty in the

governing text. United States v. Maupin, 520 F.3d 1304, 1307 (11th Cir. 2008).

The simple existence of some textual ambiguity is insufficient to warrant

application of this rule because most statutes are ambiguous to some extent. Id.

      A defendant is a career offender if (1) the defendant was at least 18 years old

at the time the defendant committed the instant offense of conviction; (2) the

instant offense of conviction is a felony that is either a crime of violence or a

controlled substance offense; and (3) the defendant has at least two prior felony


                                           2
              Case: 12-13273     Date Filed: 06/05/2013    Page: 3 of 5


convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a). The term “crime of violence” in § 4B1.1(a) means in part

any offense under federal or state law, punishable by imprisonment for a term

exceeding one year, that is burglary of a dwelling. U.S.S.G. § 4B1.2(a)(2). If the

offense level for a career offender from the table in § 4B1.1(b) is greater than the

offense level otherwise applicable, the offense level from the table in § 4B1.1(b)

shall apply. U.S.S.G. § 4B1.1(b).

      A district court may modify an imprisonment term in the case of a defendant

who 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). Part A of Amendment 750 amended § 2D1.1 by reducing base

offense levels associated with various amounts of crack cocaine under the Drug

Quantity Table in § 2D1.1(c). See U.S.S.G. App. C, Amend. 750, Pt. A. In 2011,

the Sentencing Commission decided to make Parts A and C of Amendment 750

retroactive. 76 Fed.Reg. 41332-01 (2011). Amendment 750 became effective and

retroactive on November 1, 2011. U.S.S.G. App. C, Amends. 750, 759.

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

motion. United States v. Bravo, 203 F.3d 778, 780 (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


                                          3
               Case: 12-13273     Date Filed: 06/05/2013    Page: 4 of 5


base level to determine what ultimate sentence it would have imposed.” Id.

According to the Sentencing Guidelines, in determining whether a reduction in the

defendant’s imprisonment term is warranted, “the court shall determine the

amended guideline range that would have been applicable to the defendant if the

[applicable retroactive amendment] had been in effect at the time the defendant

was sentenced.” U.S.S.G. § 1B1.10(b)(1), 1B1.10(c), comment. (n.4). In making

such determination, the court shall substitute only the applicable retroactive

amendment for the corresponding guideline provisions that were applied when the

defendant was sentenced and shall leave all other guideline application decisions

unaffected. Id. Under the second step, the court has the discretion to decide

whether to retain the original sentence or to resentence the defendant under the

amended guideline range. See Bravo, 203 F.3d at 781.

      “By its terms, § 3582(c)(2) does not authorize a sentencing or resentencing

proceeding.” Dillon v. United States, 560 U.S. , 130 S.Ct. 2683, 2690, 177

L.Ed.2d 271 (2010). The Supreme Court has rejected a defendant’s argument that

the district court erred in failing to correct two mistakes in his original sentence,

concluding that because such aspects of his sentence were not affected by the

amendment to § 2D1.1, they were outside the scope of the proceeding authorized

by § 3582(c)(2). Dillon, 560 U.S. at , 130 S.Ct. at 2693-94.




                                           4
              Case: 12-13273      Date Filed: 06/05/2013   Page: 5 of 5


      A retroactive amendment to the drug quantity table at § 2D1.1 does not have

the effect of lowering the career offender-based guideline range within the

meaning of § 3582(c)(2), and district courts are not authorized to reduce a sentence

on that basis. See Moore, 541 F.3d at 1327-28, 1330. In Freeman v. United States,

131 S.Ct. 2685, 180 L.Ed.2d 519 (2011), a plurality of the Supreme Court held that

a defendant was eligible for a § 3582(c)(2) reduction in a specific situation where

the defendant’s plea agreement called for a particular sentence based on the

subsequently lowered Sentencing Guidelines. We held in United States v. Lawson,

686 F.3d 1317 (11th Cir. 2012), that Moore remains binding precedent in the

Eleventh Circuit because it was not overruled by Freeman, because Freeman did

not address defendants whose total offense level was calculated according to the

career offender provision. See Lawson, 686 F.3d at 1321.

      Section 3582(c)(2) did not empower or obligate the district court to reduce

Applefield’s sentence below the reduction that the district court already granted

here. Applefield’s career offender status was not nullified when he was originally

sentenced based on an offense level from U.S.S.G. § 2D1.1, rather than an offense

level from U.S.S.G. § 4B1.1(b).

      AFFIRMED.




                                          5
