              Case: 14-10847     Date Filed: 08/19/2014   Page: 1 of 4


                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 14-10847
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 8:01-cr-00079-EAK-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

DANYEL BURNETT,

                                                               Defendant-Appellant.
                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________
                               (August 19, 2014)

Before MARCUS, MARTIN, and FAY, Circuit Judges.

PER CURIAM:

      Danyel Burnett is a federal prisoner serving a sentence of life imprisonment

after being convicted of: (1) distributing 50 grams or more of cocaine base, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii), and (2) possessing with intent
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to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(A)(iii). In 2012, Burnett filed a motion to reduce his

sentence pursuant to 18 U.S.C. § 3582(c)(2) based on Amendments 748 and 750 of

the United States Sentencing Guidelines (USSG). The district court denied this

motion, finding that Burnett was not eligible for a reduction in his sentence

because he was originally sentenced as a career offender pursuant to USSG

§ 4B1.1. Burnett now appeals, and the government has moved to summarily

affirm the district court ruling and to stay the briefing schedule in the meantime.

After careful review, we grant the government’s motion to summarily affirm the

district court’s ruling. As a result, the government’s motion to stay the briefing

schedule is denied as moot.

       Summary disposition is appropriate either where time is of the essence, such

as “situations where important public policy issues are involved or those where

rights delayed are rights denied,” or where “the position of one of the parties is

clearly right as a matter of law so that there can be no substantial question as to the

outcome of the case, or where, as is more frequently the case, the appeal is

frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir.

1969). 1



1
 In Bonner v. Pritchard, 661 F.2d 1206 (11th Cir. 1981), the Eleventh Circuit adopted as binding
precedent the decisions of the former Fifth Circuit rendered before October 1, 1981. Id. at 1207.
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      Summary disposition for the government is appropriate here because our

binding precedent clearly prevents Burnett from receiving the sentencing relief he

is seeking. In United States v. Moore, 541 F.3d 1323 (11th Cir. 2008), this Court

held that prisoners who were sentenced as career offenders under § 4B1.1 are not

authorized to be resentenced pursuant to § 3582(c)(2) when the “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.” Id. at

1330. Burnett responds that the Supreme Court’s decision in Freeman v. United

States, ___ U.S. ___, 131 S. Ct. 2685 (2011), calls into question this Court’s

holding in Moore. He acknowledges, however, that this Court considered and

rejected this argument in United States v. Lawson, 686 F.3d 1317, 1320–21 (11th

Cir. 2012). See id. at 1321 (“Moore remains binding precedent because it has not

been overruled.”). Thus, Burnett is not entitled to relief here because he was

originally sentenced as a career offender, and his guidelines range was not changed

by Amendments 748 and 750.

      To the extent that Burnett argues that he is entitled to be resentenced because

of the Fair Sentencing Act’s reduction of certain statutory mandatory minimums,

this argument is also foreclosed by this Court’s binding precedent. See United

States v. Berry, 701 F.3d 374 (11th Cir. 2012). In Berry, this Court held that the

Fair Sentencing Act “is not a guidelines amendment by the Sentencing


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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. at 377. Additionally, this

Court held that the Fair Sentencing Act does not apply retroactively to defendants

sentenced prior to the Act’s enactment on August 3, 2010. Id. Burnett, who was

sentenced in 2003, therefore cannot benefit from the Fair Sentencing Act’s

reductions in statutory mandatory minimums.

      Because this Court’s binding precedent forecloses the review Burnett seeks,

the government’s motion for summary affirmance is GRANTED, the judgment of

the district court is AFFIRMED, and the government’s motion to stay the briefing

schedule is DENIED as moot.




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