                    Case: 12-11630        Date Filed: 01/10/2013   Page: 1 of 8

                                                                       [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                       Nos. 12-11630; 12-11898
                                        Non-Argument Calendar
                                      ________________________

                            D.C. Docket No. 3:93-cr-00201-HES-JBT-1



UNITED STATES OF AMERICA,

lllllllllllllllllllllllllllllllllllllll                                  lPlaintiff-Appellee,

                                               versus

IKE FLORENCE, JR.,
a.k.a. Big Ike,

llllllllllllllllllllllllllllll                                        Defendant-Appellant.

                                     ________________________

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

                                          (January 10, 2013)

Before DUBINA, Chief Judge, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
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       Appellant Ike Florence, Jr., represented by counsel, appeals the district

court’s refusal to further reduce his sentence when it granted, in part, and denied,

in part, his request for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and

Amendment 750 to the Sentencing Guidelines.1 He argues that the court

improperly applied the career offender offense level provision and instead, should

have further reduced his sentence.2

       In a § 3582(c)(2) proceeding, we review de novo the district court’s legal

conclusions regarding the scope of its authority under 18 U.S.C. § 3582(c)(2).

United States v. James, 548 F.3d 983, 984 (11th Cir. 2008). “Once it is

established that 18 U.S.C. § 3582 applies, a district court’s decision to grant or

deny a sentence reduction is reviewed only for abuse of discretion.” Id. at 984 n.1.

A district court abuses its discretion in a § 3582(c)(2) proceeding if it fails to

apply the proper legal standard or to follow proper procedures in making its

determination. United States v. Jules, 595 F.3d 1239, 1241-42 (11th Cir. 2010)

(internal quotation marks omitted). We may affirm the district court’s decision on


       1
          Florence designated only the denial of his 2011 § 3582(c)(2) motion in his notice of
appeal, so we lack jurisdiction to consider the merits of any of his earlier § 3582(c)(2) motions.
See Fed.R.App.P. 3.1(a), (c)(1)(B).
       2
           By failing to present argument regarding his motion for reconsideration in his initial
brief, Florence has abandoned any challenge in that respect on appeal because a party seeking to
raise a claim or issue on appeal must raise it “plainly and prominently” or the issue is deemed
abandoned. United States v. Jernigan, 341 F.3d 1273, 1284 n.8 (11th Cir. 2003).

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any basis supported by the record. United States v. Acuna-Reyna, 677 F.3d 1282,

1284 (11th Cir.), cert. denied, 133 S. Ct. 342 (2012).

      A district court may not modify a term of imprisonment unless a defendant

was sentenced based on a sentencing range that has subsequently been lowered by

the Sentencing Commission. See 18 U.S.C. § 3582(c)(2). Parts A and C of

Amendment 750 to the Guidelines may serve as the basis for a sentence reduction.

U.S.S.G. § 1B1.10(c). A proceeding under § 3582(c)(2) and § 1B1.10 does not

constitute a full resentencing, and the district court must maintain all original

sentencing determinations, with the sole exception of applying the relevant

amended guideline range. United States v. Bravo, 203 F.3d 778, 781 (11th Cir.

2000). The policy statement for this type of sentence reduction provides that “[i]n

no event may the reduced term of imprisonment be less than the term of

imprisonment the defendant has already served.” U.S.S.G. § 1B1.10(b)(2)(C).

      District courts must engage in a two-part analysis when considering

§ 3582(c)(2) motions. Bravo, 203 F.3d at 780. First, a court must recalculate the

applicable guideline range, using the amended guideline provisions. United States

v. Williams, 557 F.3d 1254, 1256 (11th Cir. 2009). Second, the court then must

decide, in its discretion, whether to retain the existing sentence or impose a

reduced sentence, within the new range, considering the § 3553(a) factors as well

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as public safety. Id. (citing U.S.S.G. § 1B1.10, cmt. 1(B)).

      At the latter stage, “a district court commits no reversible error by failing to

articulate specifically the applicability—if any—of each of the section 3553(a)

factors, as long as the record demonstrates that the pertinent factors were taken

into account by the district court.” United States v. Eggersdorf, 126 F.3d 1318,

1322 (11th Cir. 1997). In Eggersdorf, we found sufficient the district court’s

order stating that it had reviewed the § 3582(c)(2) motion, the government’s

response in opposition, the record, and was “otherwise duly advised.” Id. at 1322-

23. We noted that the motion and response had discussed matters that were

relevant to the § 3553(a) factors. Id. at 1323.

      While the two steps are required, the court is not required to reduce the

defendant’s sentence at all, even if the defendant is eligible under § 3582(c)(2),

because that sentence determination is discretionary. United States v. Vautier,

144 F.3d 756, 760 (11th Cir. 1998) (“The grant of authority to the district court to

reduce a term of imprisonment [under 3582(c)(2)] is unambiguously

discretionary.”)

      Amendment 750 to the Sentencing Guidelines, which was made

retroactively applicable by Amendment 759, became effective on November 1,

2011. This amendment made permanent the temporary emergency

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Amendment 748, which revised the crack cocaine quantity tables listed in

U.S.S.G. § 2D1.1(c), pursuant to the Fair Sentencing Act of 2010. See U.S.S.G.

App. C, Amend. 750, Reason for Amend. and U.S.S.G. App. C, Amend. 759. As a

result of these amendments, under § 2D1.1(c), after incorporating the

enhancements and reductions that Florence received, a total offense level of 34 is

assigned in cases involving the marijuana equivalent of the 700 grams of powder

cocaine and 700 grams of crack cocaine for which he was convicted—which falls

into the category of at least 1,000 kilograms but less than 3,000 kilograms of

marijuana. See U.S.S.G. § 2D1.1(c)(4) (2011). This represents a decrease of two

levels from 2008, when the court reduced Florence’s sentence under § 3582(c)(2).

      The Federal Sentencing Guidelines provide enhanced punishment for

defendants who, at the time of their sentencing for a violent felony, have two or

more prior felony convictions for a crime of violence or a controlled substance

offense. U.S.S.G. § 4B1.1. Defendants who fall within that category are

considered “career offenders,” assigned a category VI criminal background, and

are subject to offense-level enhancements determined by the severity of the current

offense. Id. The current career offender base offense level for convictions

carrying a statutory maximum of life imprisonment is 37. U.S.S.G. § 4B1.1(b)(1).

      In United States v. Moore, 541 F.3d 1323, we held that defendants

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sentenced as career offenders under § 4B1.1 were not entitled to § 3582(c)(2)

sentence reductions because calculation of their guideline ranges did not involve

the base offense levels under § 2D1.1. Id. at 1327-28. In Freeman v. United

States, 564 U.S. __, 131 S. Ct. 2685, 180 L. Ed. 2d. 519 (2011), which did not

address career offenders, the U.S. Supreme Court concluded, in a plurality

opinion, that when a district court accepted a Rule 11(c)(1)(C) plea based on the

sentencing guidelines, the defendant was eligible to request a sentence reduction

pursuant to § 3582(c)(2) if a retroactive amendment later lowered the applicable

guideline range. Id. at __, 131 S. Ct. at 2695. See also Marks v. United States,

430 U.S. 188, 193, 97 S. Ct. 990, 993, 51 L. Ed. 2d 260 (1977) (finding that, when

a Supreme Court decision lacks a majority opinion, “the holding of the Court may

be viewed as the position taken by those Members who concurred in the

judgments on the narrowest grounds”) (quoting Gregg v. Georgia, 428 U.S. 153,

169 n. 15, 96 S. Ct. 2909, 2923 (1976)). We held in United States v. Lawson, 686

F.3d 1317 (11th Cir.), cert. denied, 133 S. Ct. 568 (2012), that Moore remains

binding precedent in this Circuit because it was not overruled by Freeman, as that

case did not address defendants whose total offense levels were calculated

according to the career offender provision, so Freeman was not “clearly on point”

with the issue in Moore. See id. at 1320-21.

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       Even if we assume, arguendo, that Florence was eligible for relief here, we

conclude that his appeal is meritless. Because the decision whether to reduce an

eligible defendant’s sentence under § 3582 is entirely discretionary, and there is no

indication that the court abused its discretion, Florence’s challenge to the extent of

the reduction that he received fails. First, the record shows that the court

recalculated his base offense level, apparently relying on the probation officer and

the government’s representation that the correct guidelines provision was now the

career offender3 provision because it yielded a higher base offense level than the

amended § 2D1.1, then incorporated the relevant enhancements and reductions, to

reach an amended offense level of 35. The court also properly concluded that

Florence’s amended guideline range was 292 to 365 months, which was lower

than his pre-amendment range of 324 to 405 months, so he was eligible for a

reduction under § 3582(c)(2). 2011 Federal Sentencing Guidelines, Sentencing

Table; see Williams, 557 F.3d at 1256.

       Second, even if a defendant is eligible for a reduction under § 3582, the

court’s decision regarding whether to reduce his sentence at all is entirely



       3
          The government now contends that Florence was sentenced as a career offender and
notes that career offenders are not eligible for § 3582(c)(2) reductions. We find it unnecessary to
address this contention, however, in light of our present disposition and the government’s failure
to cross-appeal.

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discretionary. James, 548 F.3d at 984 n.1; Vautier, 144 F.3d at 760. There is no

indication here that the court acted unreasonably or abused its discretion by failing

to apply the proper legal standard or to follow the proper procedures. Jules, 595

F.3d 1239, 1241-42. Although the court did not expressly discuss the § 3553(a)

factors or public safety, it mentioned both parties’ arguments and the probation

office’s supplemental memo, all of which discussed various § 3553(a) factors.

This satisfies step two of the required § 3582(c)(2) analysis. See Eggersdorf, 126

F.3d at 1322.

      While Florence argues that the court erred by not reducing his sentence to

less than 292 months or time served, the court could not have sentenced him to

any less than 292 months, as that was the bottom of the amended guideline range.

We have held that a court may not reduce a defendant’s sentence below the

amended range unless the defendant has received the benefit of a substantial

assistance motion filed by the government, which Florence did not. United States

v. Liberse, 688 F.3d 1198 (11th Cir. 2012).

      For the aforementioned reasons, we affirm the district court’s order refusing

to further reduce Florence’s sentence.

      AFFIRMED.




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