           Case: 13-11745   Date Filed: 08/29/2013   Page: 1 of 4


                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT

                      ________________________

                            No. 13-11745
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:05-cr-00033-WLS-1


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus


SADERRICK JERMAINE NOIRD,

                                                         Defendant-Appellant.

                     __________________________

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

                            (August 29, 2013)

Before HULL, MARCUS and JORDAN, Circuit Judges.

PER CURIAM:
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       Saderrick Jermaine Noird appeals the district court’s denial of his pro se

motion for a sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2), following his

conviction for conspiring to possess with intent to distribute more than 50 grams of

crack cocaine.      At sentencing, the district court applied a 2-level substantial

assistance departure under U.S.S.G. § 5K1.1, and calculated Noird’s guideline

range to be 210 to 262 months’ imprisonment based on his career offender

designation. The district court sentenced him to 260 months’ imprisonment. The

government subsequently filed a Fed.R.Crim.P. 35(b) motion for a sentence

reduction on account of Noird’s substantial assistance in the prosecution of other

persons.     The district court resentenced Noird to a term of 135 months’

imprisonment.      On appeal, Noird argues that the rule of lenity dictates that

Amendment 750 is applicable to his sentence because he received a downward

departure for substantial assistance. After careful review, we affirm.

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

of its authority under § 3582(c)(2). United States v. Moore, 541 F.3d 1323, 1326

(11th Cir. 2008). Amendment 750 revised the crack cocaine quantity tables to

conform to the Fair Sentencing Act of 2010, which amended certain statutory

minimum sentences for crack cocaine offenses.1


1
       Amendment 750 was subsequently made retroactive by Amendment 759, thereby
permitting defendants to move for sentence reductions under § 3582(c)(2) in appropriate
circumstances.

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      A district court may not reduce a defendant’s term of imprisonment that has

been imposed unless: (1) the defendant’s sentence was based upon a guideline

range that the Sentencing Commission subsequently lowered; (2) the district court

considers the 18 U.S.C. § 3553(a) factors; and (3) a reduction is consistent with

applicable policy statements issued by the Sentencing Commission. 18 U.S.C. §

3582(c)(2). When determining whether a reduction is warranted, a court should

determine the guideline range that would have applied had the relevant amendment

been in effect at the time of the defendant’s sentencing. U.S.S.G. § 1B1.10(b)(1).

A court must only substitute the relevant amendment into the district court’s

original guideline calculations, and leave all other sentencing decisions unaffected.

Id.; see United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000).

      A reduction is not consistent with the Guidelines’ policy statement if the

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

guideline range. U.S.S.G. § 1B1.10(a)(2)(B). A reduction under § 3582(c)(2) is

not authorized where the applicable amendment does not have the effect of

lowering the defendant’s applicable guideline range because of the operation of

another guideline. Moore, 541 F.3d at 1327-28. This includes situations in which

the defendant’s applicable guideline range is calculated through the application of

the career offender guideline. Id. at 1328.




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      In Moore, we explained that a district court had discretion to resentence a

career offender under § 3582(c)(2) where he had previously received a downward

departure under U.S.S.G. § 4A1.3 because the seriousness of his criminal history

was substantially overrepresented by his career offender designation. Id. at 1329

30. The rationale behind such authority in that situation was that the court was

reducing the appellant’s offense level to what would be in effect absent the career

offender guideline.   Id. at 1329.    In contrast, the appellants in Moore were

ineligible for sentence reductions because their respective departures were based

on substantial assistance and diminished capacity. Id. at 1330.

      In this case, Amendment 750 did not have the effect of lowering Noird’s

applicable guideline range under § 4B1.1(b) as a career offender. See Moore, 541

F.3d at 1327-28. Under § 4B1.1(b), Noird’s applicable guideline range remains

the same as it was at his original sentencing. Further, neither his § 5K1.1 departure

nor Rule 35(b) reduction rendered him eligible for relief under § 3582(c)(2). See

Moore, 541 F.3d at 1329-30. Accordingly, we affirm the denial of his motion for a

sentence reduction.

      AFFIRMED.




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