           Case: 13-15664   Date Filed: 06/25/2014   Page: 1 of 6




                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-15664
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 8:97-cr-00233-SCB-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

ANTHONY MORELAND,
a.k.a. Tony,

                                                         Defendant-Appellant.

                       ________________________

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

                              (June 25, 2014)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:
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       On December 18, 2003, Anthony Moreland pursuant to a plea agreement

tendered a plea of guilty to Count One of a two-count indictment, distribution of 5

grams or more of crack cocaine in or on or within 100 feet of a public or private

youth center on November 12, 1996, in violation of 21 U.S.C. §§ 841(a)(1) and

860(a). The presentence report (“PSI”) prepared by the District Court’s Probation

Office determined the offense level for the crime under U.S.S.G. §§ 2D1.1 and

2D1.2. Because the offense involved the sale of 87.72 ounces of crack cocaine, the

PSI fixed the base offense level at 32, under U.S.S.G. 2D.1, added 2 levels, under

U.S.S.G. § 2D1.2(a), because the offense occurred near a protected area, for total

offense level of 34, then adjusted that level downward, under U.S.S.G. § 3E1.1(a)

and (b) to 31, for acceptance of responsibility. PSI at ¶ 28. Coupled with a

criminal history category VI, level 31 yielded a Guidelines sentence range of 188

to 235 months imprisonment. Id. at ¶ 82.


       On March 23, 2004, the District Court adjudicated Moreland guilty of the

offense, adopted the PSI’s Guidelines range, found that Moreland was a career

offender under U.S.S.G. 4B1.1,1 and, noting that his career offender status did not

affect the Guidelines range calculation under §§ 2D1.1 and 2D1.2, Doc. 71, at 55,




       1
        Moreland had two convictions for a crime of violence in Sarasota County, Florida,
manslaughter in 1978 and robbery in 1983.
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sentenced Moreland to a prison term of 188 months, at the low end of the

Guidelines range. Id., at 58-59, 61. Moreland did not appeal his sentence.


      On October 17, 2008, Moreland, proceeding pro se, moved the District

Court to reduce his sentence pursuant to 18 U.S.C. § 3582(c) based on Amendment

706 of the Sentencing Guidelines, a retroactive amendment that reduced the drug-

quantity thresholds and base offense levels for certain crack offenses. Moreland

acknowledged that he was a career offender, but argued that he had been sentenced

not as a career offender but pursuant to a Guidelines range fixed by U.S.S.G. §§

21D1.1 and 2D1.2 for his drug offense and that the court should adjust the

Guidelines range based on those two sections and reduce his sentence under

Amendment 706. The District Court, stating, “[h]ad the Defendant been sentenced

after the effective date of the amendment to the crack cocaine guideline, the

amendment would have had no effect on his sentence,” Doc. 64, at 3, concluded

that Amendment 706 did not affect Moreland’s sentence because he was a career

offender and denied his § 3582(c) motion.


      Moreland, having obtained counsel, appealed the District Court’s decision.

United States v. Moreland, 355 Fed. Appx. 376, 2009 WL 4598278 (C.A. 11

(Fla.)). He presented the same arguments he presented to the District Court. Id. at

1-2. In response, we stated that the District Court’s first task, under the two-step


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process followed in ruling on a § 3582(c) motion, was to “determine Moreland's

new base offense level under § 2D1.1(c) [the Drug Quantity Table], and then

compare it to his career offender base offense level under § 4B1.1(b) to determine

which was higher. Id. at 2. We then said this, concluding that Amendment 706

provided Moreland no relief:


      Amendment 706 reduced Moreland's drug quantity base offense level
      from 34 to 32. See U.S.S.G. App. C, Amend. 706. Nevertheless,
      because 21 U.S.C. §§ 841(a)(1) and 860(a) carry a statutory maximum
      sentence of 80 years' imprisonment, Moreland's base offense level
      under § 4B1.1(b) remained at 34. See 21 U.S.C. §§ 841(b)(1)(B),
      860(a); U.S.S.G. § 4B1.1(b). Therefore, Amendment 706 did not have
      the effect of reducing Moreland's sentencing range. This approach is
      consistent with the policy statement in § 1B1.10(b)(1), which directs
      the court to “determine the amended guideline range that would have
      been applicable to the defendant if the amendment(s) ... had been in
      effect at the time the defendant was sentenced.” U.S.S.G. §
      1B1.10(b)(1). As a result, the district court did not err in denying
      Moreland's § 3582(c)(2) motion, and we affirm the district court's
      denial of the motion

Id. at 2-3. In short, we held that Moreland’s criminal offender status under § 4B1.1

controlled the District Court’s disposition of his § 3582(c) motion for sentence

reduction.

      On June 6, 2013, Morehead again moved the District Court pro se to reduce

his sentence pursuant to § 3582(c), this time based on Amendment 750, a second

retroactive amendment to U.S.S.G. 2D1.1(c) that reduced the drug-quantity

thresholds and base offense levels for certain crack offenses. And once again the


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District Court denied his motion, concluding that his career offender status

precluded Amendment 750, like Amendment 706, from lowering the Guidelines

range in his case. Now, having obtained counsel, he appeals that decision.

      In his first § 3582(c) proceeding, Moreland litigated the question of whether

he was sentenced as a career offender and thus precluded from § 3582(c) relief.

He did not prevail, so now the question is whether the doctrine of issue preclusion

has settled the career offender issue once and for all for Moreland.

      Issue preclusion “bars ‘successive litigation of an issue of fact or law
      actually litigated and resolved in a valid court determination essential
      to the prior judgment,’ even if the issue recurs in the context of a
      different claim.” Taylor v. Sturgell, 553 U.S. 880, 892, 128 S. Ct.
      2161, 2171, 171 L. Ed. 2d 155 (2008) (quoting New Hampshire v.
      Maine, 532 U.S. 742, 748–49, 121 S. Ct. 1808, 149 L. Ed. 2d 968
      (2001)). This serves “the dual purpose of protecting litigants from the
      burden of relitigating an identical issue with the same party or his
      privy and of promoting judicial economy by preventing needless
      litigation.” CSX Transp., Inc. v. Bhd. of Maint. of Way Emps., 327
      F.3d 1309, 1317 (11th Cir.2003) (quoting Parklane Hosiery Co. v.
      Shore, 439 U.S. 322, 326, 99 S. Ct. 645, 649, 58 L. Ed. 2d 552
      (1979)). We apply issue preclusion when (1) the issue at stake is
      identical to the one involved in the prior litigation; (2) the issue was
      actually litigated in the prior suit; (3) the determination of the issue in
      the prior litigation was a critical and necessary part of the judgment in
      that action; and (4) the party against whom the earlier decision is
      asserted had a full and fair opportunity to litigate the issue in the
      earlier proceeding. See CSX Transp., 327 F.3d at 1317.

Miller's Ale House, Inc. v. Boynton Carolina Ale House, LLC, 702 F.3d 1312, 1318

(11th Cir. 2012). It seems clear to us that all four factors are present here. As




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such, the question is settled: Moreland was sentenced as a career offender and thus

is not entitled to § 3582(c) relief.

       Moreland nonetheless argues that, even if he remains a career offender,

Freeman v. United States, 564 U.S. __, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011),

abrogated our holding in United States v. Moore, 541 F.3d 1323 (11th Cir. 2008),

that a career offender is not eligible for § 3582(c)(2) relief. We disagree. In

United States v. Lawson, 686 F.3d 1317, 1321 (11th Cir. 2012), we held that

Freeman did not overrule or abrogate our holding in Moore. As Lawson remains

good law, we are bound to follow it. See United States v. Kaley, 579 F.3d 1246,

1255 (11th Cir. 2009) (holding that we are bound by the holding of a prior opinion

unless that holding is overruled by the Court sitting en banc or by the Supreme

Court).

       AFFIRMED.




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