           Case: 12-13138   Date Filed: 04/25/2013   Page: 1 of 4


                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT

                      ________________________

                            No. 12-13138
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:05-cr-00078-VMC-DNF-1


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus


MICHAEL LYNDE ROGERS,

                                                         Defendant-Appellant.

                     __________________________

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

                             (April 25, 2013)

Before CARNES, MARCUS, and JORDAN, Circuit Judges.

PER CURIAM:
              Case: 12-13138     Date Filed: 04/25/2013    Page: 2 of 4


      Michael Lynde Rogers pleaded guilty to possession with intent to distribute

and distribution of more than five grams of crack cocaine, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(B)(iii). The presentence investigation report concluded that

he was a career offender under United States Sentencing Guidelines § 4B1.1(b)

(Nov. 2005). Because Rogers was a career offender and the offense carried a

statutory maximum sentence of 40 years, the PSR recommended a base offense

level of 34. See id. § 4B1.1(b)(B). After a 3-level reduction for acceptance of

responsibility, see id. § 3E1.1, his total offense level was 31. As a career offender,

Roger’s criminal history category was VI. See id. § 4B1.1. His resulting

guidelines range was 188 to 235 months imprisonment. The district court adopted

the PSR and sentenced Roger to 188 months imprisonment. The government later

filed a motion to reduce Rogers’ sentence by two levels based on his substantial

assistance to the government. See Fed. R. Crim. P. 35(b). The district court

granted that motion and reduced Rogers’ sentence to 151 months.

      In 2011 the district court sua sponte ordered the probation office to provide a

supplemental report on whether Rogers was eligible for a sentence reduction under

Amendment 750 to the sentencing guidelines. The report concluded that Rogers

was ineligible for a sentence reduction because he was sentenced as a career

offender. In his response, Rogers argued that he was entitled to a sentence

reduction based on Freeman v. United States, 564 U.S. —, 131 S.Ct. 2685 (2011).


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The district court concluded that Rogers was ineligible for a sentence reduction

because he was sentenced under the career offender guidelines. This is Rogers’

appeal.

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

authority under 18 U.S.C. § 3582(c)(2). United States v. Moore, 541 F.3d 1323,

1326 (11th Cir. 2008). “Where a retroactively applicable guideline amendment

reduces a defendant’s base offense level, but does not alter the [career offender]

sentencing range upon which his or her sentence was based, § 3582(c)(2) does not

authorize a reduction in sentence.” Id. at 1330. Amendment 750, which lowered

the base offense level for crack cocaine offenses, did not alter the sentencing range

upon which Rogers’ sentence was based because he was sentenced under the

career offender guideline, U.S.S.G. § 4B1.1. For that reason, Moore controls this

case.

        Rogers contends that the Supreme Court’s decision in Freeman v. United

States, 564 U.S. —, 131 S.Ct. 2685 (2011), abrogated our decision in Moore, but

we have already rejected that argument in United States v. Lawson, 686 F.3d 1317,

1321 (11th Cir. 2012). Rogers argues that Lawson is distinguishable because in

Lawson, the defendant’s sentence was within the career offender guidelines range,

while Rogers’ sentence was later reduced below his career offender guidelines

range because of his substantial assistance to the government. That distinction


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does not matter, because the question we are required to ask under Moore and

Lawson is whether Amendment 750 altered “the sentencing range upon which

[Rogers’] sentence was based.” Moore, 541 F.3d at 1330. Even though Rogers’

sentence was later reduced below his guidelines range, his sentence was still based

on the career offender guideline. And because Amendment 750 did not alter

Rogers’ sentencing range under the career offender guideline, he is not eligible for

a sentence reduction under § 3582(c)(2).

      AFFIRMED.




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