            Case: 12-10247   Date Filed: 08/06/2012   Page: 1 of 8




                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 12-10247
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 9:05-cr-80049-JIC-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

CEDRIC LEON GREEN,
a.k.a. Big Pappa,

                                                          Defendant-Appellant.

                       ________________________

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

                             (August 6, 2012)

Before HULL, PRYOR and FAY, Circuit Judges.

PER CURIAM:
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      Cedric Leon Green, a federal prisoner, appeals pro se the district court’s

denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence. After review,

we affirm.

                                I. BACKGROUND

A.    Conviction and Sentence

      In 2005, Green pled guilty to: (A) three counts of distribution of at least five

grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (Counts

1, 2 and 4); (B) one count of distribution of at least fifty grams of cocaine base, in

violation of § 841(a)(1) and (b)(1)(A) (Count 3); (C) one count of possession with

intent to distribute at least fifty grams of cocaine base, in violation of § 841(a)(1)

and (b)(1)(A) (Count 5); and (D) one count of possession with intent to distribute

marijuana, in violation of § 841(a)(1) and (b)(1)(D) (Count 6).

      Although Green had multiple prior convictions, the government did not file

a 21 U.S.C. § 851(a) notice indicating reliance upon those prior convictions to

seek an increased punishment. Accordingly, as to Counts 3 and 5, Green was

subject only to the mandatory minimum ten-year sentence in 21 U.S.C.

§ 841(b)(1)(A), and not the enhanced mandatory minimums of either twenty years

(for one prior felony drug offense) or life (for two or more prior felony drug

offenses). See 21 U.S.C. § 841(b)(1)(A). However, Green’s statutory maximum

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under § 841(b)(1)(A) was a life sentence, even without an § 851(a) notice.

         The Presentence Investigation Report (“PSI”) designated Green a career

offender because he had at least two prior felony drug convictions. Under

U.S.S.G. § 4B1.1, a career offender’s base offense level is determined based on

the “Offense Statutory Maximum.” Because Green’s statutory maximum sentence

was life, the PSI set Green’s offense level at 37. See U.S.S.G. § 4B1.1(b). With a

criminal history category of VI, the PSI recommended an advisory guidelines

range of 262 to 327 months’ imprisonment. Green did not object to the PSI’s fact

findings or guidelines calculations. At the November 2005 sentencing, the district

court imposed a 262-month sentence. Green did not file a direct appeal.

B.       First § 3582(c)(2) Motion

         In 2008, Green filed his first § 3582(c)(2) motion based on Amendment

706, which lowered the base offense levels in U.S.S.G. § 2D1.1(c) for some crack

cocaine offenses. The district court denied Green’s § 3582(c)(2) motion because

Green was sentenced as a career offender under U.S.S.G. § 4B1.1, not based on

U.S.S.G. § 2D1.1, and thus Amendment 706 did not lower Green’s sentencing

range.

C.       28 U.S.C. § 2255 Motion

         In January 2010, Green filed a motion to vacate pursuant to 28 U.S.C.

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§ 2255. Green’s § 2255 motion argued that his trial counsel was ineffective for

failing to investigate and then challenge the validity of a search warrant and

Green’s criminal complaint, but did not raise any sentencing issues. The district

court denied Green’s § 2255 motion as time-barred. The district court and this

Court denied Green’s request for a certificate of appealability, and his appeal was

dismissed.

D.    Second § 3582(c)(2) Motion

      On November 15, 2011, Green filed his second § 3582(c)(1) motion, which

is the subject of this appeal. This time, Green’s § 3582(c)(2) motion cited

Amendments 506 and 567 and the Supreme Court’s decision in United States v.

LaBonte, 520 U.S. 751, 117 S. Ct. 1673 (1997).

      Amendment 506, effective November 1, 1994, changed the definition of

“Offense Statutory Maximum” in U.S.S.G. § 4B1.1’s commentary to mean only

the basic statutory maximum and excluded any sentencing enhancements based on

the defendant’s prior criminal record. See U.S.S.G. App. C, amend. 506. In

LaBonte, the Supreme Court concluded that Amendment 506 violated the plain

language of 28 U.S.C. § 944(h), which requires the guidelines to “specify a

sentence . . . at or near the maximum term authorized” for defendants who had

certain prior felony convictions. LaBonte, 520 U.S. at 757-62, 117 S. Ct. at 1677-

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79. The term “maximum term authorized” in § 944(h) includes any relevant

statutory sentencing enhancements. See id. at 753, 117 S. Ct. at 1675. In

response, the Sentencing Commission adopted Amendment 567, effective

November 1, 1997, which amended the commentary to § 4B1.1 to specify that

“Offense Statutory Maximum” included sentencing enhancements based on the

defendant’s prior criminal record. See U.S.S.G. App. C, amend. 567.

      The government misconstrued Green’s second § 3582(c)(2) motion as one

asking for a reduction based on further amendments to the crack cocaine

guidelines provisions. The government argued that, as a career offender, Green

remained ineligible for a reduction.

      The district court denied Green’s second § 3582(c)(2) motion, concluding

that he was not entitled to a sentence reduction. The district court found that

Green’s sentencing range was not lowered by any amendments to the crack

cocaine guidelines because his guidelines range was based on the career offender

provision, U.S.S.G. § 4B1.1. In a footnote, the district court found that relief

under Amendments 506, 567 and LaBonte was unwarranted because those

amendments and LaBonte all predated Green’s June 20, 2005 entry of his guilty

plea and thus could not have “subsequently” lowered his sentencing range, as

required by 18 U.S.C. § 3582(c)(2). The district court denied Green’s subsequent

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motion for reconsideration.

                                     II. DISCUSSION

       Under § 3582(c)(2), the district court may reduce a defendant’s prison term

only when the defendant “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). Thus, if a retroactively applicable

guidelines amendment does not lower the defendant’s applicable guidelines range,

a sentence reduction under § 3582(c)(2) is not authorized. See U.S.S.G. §

1B1.10(a)(2)(B).1

       On appeal, Green argues that at his original sentencing the district court

erred in applying U.S.S.G. § 4B1.1 to calculate his offense level because the

government did not file a § 851(a) information. According to Green, under the

Supreme Court’s reasoning in LaBonte, applying § 4B1.1 to him violated 28

U.S.C. § 944(b)(2). Green explicitly states that he does not rely upon

Amendments 506 and 567 as the bases for his § 3582(c)(2) motion. Indeed, Green

does not contend that either amendment had the effect of lowering his sentencing



       1
        “We review de novo a district court’s conclusions about the scope of its legal authority
under 18 U.S.C. § 3582(c)(2)” and review for abuse of discretion its decision whether to reduce a
sentence pursuant to § 3582(c)(2). United States v. Jones, 548 F.3d 1366, 1368 & n.1 (11th Cir.
2008).

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range. Instead, Green says he relies solely upon LaBonte.

      The problem for Green is that Supreme Court decisions by themselves do

not provide § 3582(c)(2) relief because they are not retroactively applicable

guidelines amendments. See United States v. Moreno, 421 F.3d 1217, 1220 (11th

Cir. 2005). Moreover, Green does not identify any subsequent, retroactively

applicable amendment to the guidelines, much less one that lowered his sentencing

range. See 18 U.S.C. § 3582(c)(2) (requiring a defendant’s sentencing range to be

“subsequently . . . lowered” by a guidelines amendment). Green disavows any

reliance upon Amendments 506 and 567.

      In any event, as the district court noted, Amendments 506 and 567 were

promulgated in 1994 and 1997, respectively, and they, along with LaBonte

decided in 1997, predate Green’s 2005 convictions and sentences. In fact, the

district court used the 2004 edition of the Sentencing Guidelines, which contained

the version of § 4B1.1 modified by Amendment 567. Thus, Green received the

benefit of LaBonte. In short, neither amendment could apply retroactively to

Green or subsequently lower his sentencing range, and neither amendment is a

proper basis for Green’s § 3582(c)(2) motion.

      To the extent Green attempts to argue that, in his 2005 original sentencing,

the district court erroneously sentenced him as a career offender, his claim falls

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outside the “limited scope” of his § 3582(c)(2) proceeding. See Dillon v. United

States, ___ U.S. ___, 130 S. Ct. 2683, 2692 (2010). A § 3582(c)(2) proceeding is

not a de novo resentencing, and the defendant is not permitted to challenge

original sentencing determinations not implicated by a retroactively applicable

guidelines amendment. Id. at 2690-91; United States v. Bravo, 203 F.3d 778, 781

(11th Cir. 2000).2

       For all these reasons, the district court properly concluded that it lacked

authority to grant Green’s § 3582(c)(2) motion.

       AFFIRMED.




       2
         Additionally, Green’s argument is barred by the law-of-the-case doctrine because he did
not raise it in a direct appeal after his original sentencing. See United States v. Escobar-Urrego,
110 F.3d 1556, 1560 (11th Cir. 1997). We also note that Green did not raise this sentencing
issue in his § 2255 motion.

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