             Case: 12-13139   Date Filed: 06/04/2013   Page: 1 of 5


                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 12-13139
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 2:04-cr-00104-VMC-DNF-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

LISA HARRIS,

                                                           Defendant-Appellant.

                       ___________________________

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

                                (June 4, 2013)

Before TJOFLAT, PRYOR, and JORDAN, Circuit Judges.

PER CURIAM:

     Lisa Harris appeals the district court’s denial of her motion for a sentence

reduction under 18 U.S.C. § 3582(c)(2). She contends that Amendment 750 to the

Sentencing Guidelines authorized the court to reduce her sentence, despite her
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status as a career offender, because a downward departure led to her receiving a

sentence below her career offender guideline range. She also argues that her

sentence was based at least in part on her crack cocaine guideline range because

that guideline is the “starting point” for all crack cocaine offenses. After review,

we affirm.

                                         I.

      Ms. Harris pled guilty to possession with the intent to distribute fifty grams

or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii),

and to conspiracy to possess with the intent to distribute five grams or more of

crack cocaine, in violation of 18 U.S.C. § 2. Because she had two prior felony

convictions, the district court sentenced Ms. Harris as a career offender. The court

therefore used United States Sentencing Guidelines § 4B1.1 instead of § 2D1.1 to

determine her offense level and criminal history category, which (after an

acceptance of responsibility reduction) were 34 and VI, respectively. See U.S.S.G.

§ 4B1.1. Because her criminal history category overrepresented the seriousness of

her past criminal conduct, the court departed downward to category V. See

U.S.S.G. § 4A1.3. Ms. Harris’ resulting guideline range was 235 to 293 months,

and the court sentenced her to 235 months, the low end of that range.

      Ms. Harris then filed a pro se §3582(c)(2) motion based on Amendment 706.

The district court denied that motion, concluding that it lacked authority to reduce


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Ms. Harris’ sentence because her sentence was based on the career offender

guideline and not on the crack cocaine guideline. Ms. Harris later filed a second §

3582(c)(2) motion, this time based on Amendment 750. The district court denied

that motion on the same grounds, and Ms. Harris appealed that denial to us.

                                         II.

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

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

(11th Cir. 2008). Where a retroactively applicable guideline amendment does not

alter the sentencing range upon which a defendant’s sentence was based, §

3582(c)(2) does not authorize a sentence reduction. See id. at 1330. Amendment

750, which lowered the crack cocaine base offense levels in § 2D1.1, did nothing

to the career offender base offense levels in § 4B1.1. Because Ms. Harris was

sentenced under § 4B1.1 and not § 2D1.1, then, Amendment 750 did not alter the

range upon which her sentence was based. See id. Under our decision in Moore,

that should be the end of the story.

      But Ms. Harris invites us to add another chapter: she contends that the

Supreme Court’s decision in Freeman v. United States, 564 U.S. ___, 131 S. Ct.

2685 (2011), undermined our Moore decision to the point of abrogation.

Unfortunately for Ms. Harris, however, we have already rejected that argument in

United States v. Lawson, 686 F.3d 1317, 1321 (11th Cir. 2012). Although she


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acknowledges that fact, Ms. Harris argues that Lawson is distinguishable from her

case because, unlike the Lawson defendant, she was not sentenced within the

career offender guideline range. Instead, because the sentencing judge granted her

a downward departure under § 4A1.3 and reduced her criminal history category

from VI to V, the sentence she ultimately received was below her career offender

guideline range.

      While this fact does differentiate Ms. Harris from the defendant in Lawson,

it makes her similar to two of the defendants in Moore. In Moore, two defendants

received sentences below their career offender guideline ranges because of

downward departures. Despite that fact, we held that neither defendant was eligible

for a § 3582(c)(2) reduction because each had been sentenced as a career offender.

See 541 F.3d at 1330. So, like Ms. Harris’ abrogation argument, we have already

rejected this argument as well. And like the two Moore defendants, Ms. Harris

(even with her downward departure) was still sentenced based on her career

offender guideline range. That means she is not eligible for a sentence reduction

under § 3582(c)(2). See, e.g., U.S.S.G. § 1B1.10 cmt. n.1 (clarifying that the

applicable guideline range evaluated when assessing eligibility for a sentence

reduction is the one “determined before consideration of any departure provision”).

      Ms. Harris’ final argument—that her sentence was in part “based on” the

crack cocaine guideline range because that guideline is the “starting point for


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sentencing in all crack cases”—does not make her eligible for a § 3582(c)(2)

reduction. As we have recognized, “[a]ny reduction must be ‘consistent with

applicable policy statements issued by the Sentencing Commission.’” See United

States v. Glover, 686 F.3d 1203, 1206 (11th Cir. 2012) (quoting § 3582(c)(2)).

Here, the applicable policy statement requires that an amendment “have the effect

of lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2).

      When the district court determined that the career offender guideline applied

to Ms. Harris, the court replaced her original sentencing guideline range (the crack

cocaine guideline range in § 2D1.1) with the one contained in § 4B1.1(b). That

became her applicable guideline range, and that range was not affected by

Amendment 750. Cf. United States v. Williams, 549 F.3d 1337, 1342 (11th Cir.

2008) (finding, based on policy statements, defendant ineligible for § 3852(c)(2)

reduction because he “was subject to a statutory mandatory minimum that replaced

his original sentencing guideline range” and “was not sentenced according to the

base offense level in § 2D1.1”). Ms. Harris was therefore ineligible for a sentence

reduction, and the district court did not err in denying her § 3582(c)(2) motion.

                                         III.

      The district court’s denial of Ms. Harris’ motion for a sentence reduction

under § 3582(c)(2) is affirmed.

      AFFIRMED.


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