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                      REVISED November 12, 2014

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                    No. 13-30839                    October 27, 2014
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk


             Plaintiff - Appellee

v.

STEPHEN BANKS, also known as Red,

             Defendant - Appellant




                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before KING, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:
      Defendant-Appellant Stephen Banks appeals the denial of his motion to
modify his sentence under 18 U.S.C. § 3582(c)(2).            At issue is whether a
defendant originally sentenced under the drug quantity table in U.S.S.G.
§ 2D1.1, but resentenced in a section 3582 proceeding using the career offender
provisions in U.S.S.G. § 4B1.1, can bring another section 3582 motion to reduce
his sentence based on an amendment to the Sentencing Guidelines that further
lowers the guidelines range for crack cocaine in the § 2D1.1 drug quantity
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table. For the reasons that follow, we hold that he cannot, and therefore
we AFFIRM.
                  I.     Factual and Procedural History
      Defendant-Appellant Stephen Banks pleaded guilty to conspiracy to
distribute and possess with intent to distribute cocaine hydrochloride and
cocaine base (“crack cocaine”) in 2005, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), and 846. In the factual basis to his plea agreement, Banks admitted
the amount of drugs involved was more than 1.5 kilograms of crack cocaine.
Pursuant to his plea agreement, the Government agreed not to pursue the
statutory sentencing enhancement available under 21 U.S.C. § 851 for drug
trafficking defendants with prior drug trafficking convictions.
      Because of the amount of drugs involved, Banks had a base offense level
of 38 under the drug quantity table in § 2D1.1 of the Sentencing Guidelines.
See U.S.S.G. § 2D1.1 (2004). An offender with multiple prior convictions may,
however, be sentenced under the provisions for “career offenders” in § 4B1.1.
See U.S.S.G. § 4B1.1. The § 4B1.1 guidelines are only used if they result in a
base offense level higher than that arrived at using the § 2D1.1 guidelines. See
U.S.S.G. § 4B1.1(b). Because Banks’s base offense level was 38 under § 2D1.1,
and would have been only 37 under § 4B1.1, the district court applied § 2D1.1
in sentencing Banks.
      After Banks pleaded guilty, the Government moved the court to decrease
Banks’s offense level by three points for acceptance of responsibility under
§ 3E1.1, because he pleaded guilty and provided the Government with timely
notice of his intention to do so.   See U.S.S.G. § 3E1.1.     Additionally, the
Government recommended that the court reduce Banks’s sentence as he
rendered substantial assistance to authorities. See U.S.S.G. § 5K1.1.
      Starting with the § 2D1.1 base offense level of 38, the three point
reduction for acceptance of responsibility led to an offense level of 35. Given
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his criminal history level of VI, the Guidelines range was 292 to 365 months in
prison. See U.S.S.G. ch.5, pt. A (sentencing table). Granting the Government’s
request for a reduced sentence for substantial assistance, the district court
sentenced Banks to 195 months in prison. See U.S.S.G. § 5K1.1.
       In 2008, the Sentencing Guidelines were amended, reducing the base
offense levels for crack cocaine in the § 2D1.1 drug quantity table. See U.S.S.G.
Amendment 706; U.S.S.G. § 2D1.1 (2008). Banks moved, under 18 U.S.C.
§ 3582(c)(2), to reduce his sentence due to the amendment. The district court
granted the motion, but, since the new base offense level under § 2D1.1 (36)
was lower than Banks’s § 4B1.1 offense level (37), the court applied the § 4B1.1
offense level as the starting point for the new sentencing calculation. The
result was a modified sentence of 175 months imprisonment. 1
       The next year, the Government moved to have Banks’s sentence reduced
due to additional substantial assistance to the Government. The district court
again reduced Banks’s sentence, this time to 144 months imprisonment.
       The Sentencing Guidelines for crack cocaine have once again been
amended, U.S.S.G. Amendment 750, and Banks has moved under section 3582
to have his sentence reduced again in accordance with the lower § 2D1.1 range
implemented by Amendment 750. The district court denied Banks’s motion,
explaining that, because Banks’s first section 3582 motion resulted in his being
resentenced under § 4B1.1, Amendment 750 did not affect the sentencing
range applicable to him. Banks timely appealed.




       1 37 (§ 4B1.1 offense level) – 3 (§ 3E1.1 acceptance of responsibility reduction) = 34
(adjusted offense level). With a criminal history of VI, that yielded a Guidelines range of 262
to 327 months. The court reduced the sentence further on “substantial assistance” grounds,
arriving at 175 months.
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                                 II.    18 U.S.C. § 3582
       Banks argues that, as he was not originally sentenced as a career
offender, the district court has the power to modify his sentence in light of
Amendment 750. Section 3582 generally bars district courts from modifying
sentences after they have been imposed. See 18 U.S.C. § 3582(b); Dillon v.
United States, 560 U.S. 817, 824–25 (2010). There is “an exception to the
general rule of finality ‘in the case of a defendant who has been sentenced to a
term of imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission.’” Dillon, 560 U.S. at 824 (quoting 18
U.S.C. § 3582(c)(2)). If the sentencing range is lowered, the district court may
“reduce the term of imprisonment . . . if such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.” 18 U.S.C.
§ 3582(c)(2). 2
       The issue therefore is whether the district court had authority to modify
Banks’s sentence under section 3582. Since the district court has authority
under section 3582(c)(2) only where the defendant has been sentenced “based
on a sentencing range that has subsequently been lowered by the Sentencing
Commission,” 18 U.S.C. § 3582(c)(2), the central question is whether Banks’s
sentence is “based on” the drug quantity table in § 2D1.1, used in his original
sentence, or § 4B1.1, used when his sentence was first modified. We hold that
under section 3582, a defendant’s sentence is “based on” the guidelines range
for the sentence he is currently serving, not the guidelines range used in his
original sentencing. We first note that a defendant originally sentenced using



       2 The district court must also consider “the factors set forth in section 3553(a) to the
extent that they are applicable,” before reducing the sentence. 18 U.S.C. § 3582(c)(2). The
Supreme Court has interpreted the statute as imposing a two-step inquiry: (1) whether the
defendant’s original sentencing range has been lowered and a reduction would be consistent
with applicable policy statements, and (2) whether the reduction is warranted according to
the factors set forth in section 3553(a). Dillon, 560 U.S. at 827.
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the drug quantity table in § 2D1.1 may be resentenced using § 4B1.1 in a
section 3582 proceeding when the Guidelines amendment drops the § 2D1.1
offense level below the applicable § 4B1.1 offense level. See United States v.
Jones, 596 F.3d 273, 277 (5th Cir. 2010) (“Thus, adjusting the three points
reduced for Jones’s acceptance of responsibility to his sentence after
Amendment 706, his new § 2D1.1 level would be 33. Because his career
offender offense level would result in a greater sentencing range than would
the drug offense level, the career offender level of 34 under § 4B1.1 would
control the applicable sentence Jones could receive.”). Further, a defendant
convicted of a crack cocaine offense but sentenced under § 4B1.1 is not eligible
for a section 3582 reduction. See U.S.S.G. § 1B1.10(a)(1) (“In a case in which
a defendant is serving a term of imprisonment, and the guideline range
applicable to that defendant has subsequently been lowered as a result of an
amendment to the Guidelines Manual listed in subsection (c) below, the court
may reduce the defendant’s term of imprisonment as provided by 18 U.S.C.
3582(c)(2).”); United States v. Anderson, 591 F.3d 789, 791 (5th Cir. 2009) (“The
crack cocaine guideline amendments do not apply to prisoners sentenced as
career offenders.”); United States v. Brown, 475 F. App’x 512, 513 (5th Cir.
2012) (unpublished) (applying Anderson in holding that a defendant was not
eligible for a section 3582 reduction in the wake of Amendment 750 because he
was sentenced under § 4B1.1); see also United States v. Warner, 565 F. App’x
312, 313 (5th Cir. 2014) (unpublished) (same).
      The issue therefore becomes whether the fact that Banks’s sentence was
originally imposed based on § 2D1.1 controls, even though his current, modified
sentence is based on § 4B1.1. We hold that it does not. The sentence of a
defendant to whom the § 4B1.1 guidelines were applied in a prior section 3582
modification would not be affected even if a district court had authority to
consider a section 3582 modification. The § 4B1.1 offense level would still
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exceed the amended § 2D1.1 offense level, meaning the § 4B1.1 offense level
would continue to apply. See Jones, 596 F.3d at 277. As such, Banks’s sentence
would be unaffected. The purpose of section 3582 is to allow the reduction of a
sentence where the amended guidelines would result in a lower guidelines
range applicable to the defendant. See U.S.S.G. § 1B1.10(a)(1). It is for this
reason that section 3582 does not apply when the career offender offense
provisions controlled in the original sentencing. See Anderson, 591 F.3d at
790–91. As such, the purposes of section 3582 and the amendments to the
Sentencing Guidelines are best served by holding that the district court lacks
authority to modify Banks’s sentence. See U.S.S.G. § 1B1.10(a)(1). We also
note that this result accords with the general “rule of finality” that forbids
federal courts from “modify[ing] a term of imprisonment once it has been
imposed.” 18 U.S.C. § 3582(c).
      We now address Banks’s remaining arguments for a reduction in his
sentence. Banks contends that he should be eligible for another reduction
under section 3582 because he was never sentenced as a career offender. While
that is true as far as his original sentencing was concerned, after Banks’s first
section 3582 motion, the district court recalculated his sentence under the
career offender provisions in § 4B1.1. Cf. Jones, 596 F.3d at 277. During
Banks’s original sentencing, the § 2D1.1 offense level (38) was higher than the
§ 4B1.1 offense level (37), rendering the § 4B1.1 provisions inapplicable. See
U.S.S.G. § 4B1.1(b) (“[I]f the offense level for a career offender from the table
in this subsection is greater than the offense level otherwise applicable, the
offense level from the table in this subsection shall apply.”). After the 2008
crack cocaine amendments, at issue in Banks’s first section 3582 motion, the
§ 2D1.1 offense level applicable to Banks dropped below the § 4B1.1 offense
level. Compare U.S.S.G. § 2D1.1(c) (2008) (prescribing an offense level of 36
for “at least 1.5 KG but less than 4.5 KG of Cocaine Base”), with U.S.S.G.
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§ 4B1.1(b) (prescribing a career offender offense level of 37 for crimes with a
statutory maximum of life imprisonment), and 21 U.S.C. §§ 841(b), 846
(prescribing a maximum term of life imprisonment).          Therefore, Banks’s
current sentence, as imposed after his first section 3582 motion, was calculated
using the § 4B1.1 provisions.
      Banks also argues that his plea agreement precludes him from being
sentenced as a career offender under the Guidelines. That contention is simply
not supported by the contents of his plea agreement. In the plea agreement,
the Government promises that it “will not pursue a sentence enhancement
under Title 21, United States Code, Section 851.” Section 851 is entitled
“Proceedings to establish prior convictions.” 21 U.S.C. § 851. Presumably, this
is the portion of the agreement that Banks understands to mean that he will
not be sentenced as a career offender under § 4B1.1 of the Guidelines. But
section 851 has nothing to do with § 4B1.1 of the Sentencing Guidelines.
Rather, it lays out the procedure for proving prior convictions that can be used
to trigger the statutory sentencing enhancements available under 21 U.S.C.
§ 841(b)(1)(A). United States v. Marshall, 910 F.2d 1241, 1244–45 (5th Cir.
1990); United States v. Aguilar-Pereira, No. 00-20893, 2001 WL 1075898, at *1
(5th Cir. Aug. 23, 2001) (unpublished).          These statutory sentencing
enhancements triggered by prior convictions are substantial, and, given that
Banks had prior cocaine convictions (according to the Presentence
Investigation Report), the Government’s waiver of these provisions was
certainly of some value to Banks. See 21 U.S.C. § 841(b)(1)(A)(viii) (“If any
person commits such a violation after a prior conviction for a felony drug
offense has become final, such person shall be sentenced to a term of
imprisonment which may not be less than 20 years and not more than life
imprisonment . . . .”). As such, Banks’s plea agreement does not foreclose


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application of § 4B1.1, but speaks only to the statutory sentencing
enhancements under section 851.
       Lastly, Banks argues that United States v. Tyler, No. 8:02CR213, 2012
WL 1396550 (D. Neb. Apr. 23, 2012), supports his argument that the district
court had authority to reduce his sentence under section 3582. In Tyler, the
district court reduced the sentence of a defendant who had pleaded guilty
under Federal Rule of Criminal Procedure 11(c)(1)(C).                   Tyler, 2012 WL
1396550, at *4. Relying on Freeman v. United States, --- U.S. ---, 131 S. Ct.
2685 (2011), the district court ruled that, because the defendant’s plea
agreement was based on the Guidelines, the crack cocaine amendments
decreased the applicable sentencing range and allowed for modification under
section 3582. See id. at *4. 3 We find Tyler to be inapplicable here. Banks was
not sentenced under an 11(c)(1)(C) plea agreement. In an 11(c)(1)(C) plea
agreement, the Government and the defendant “agree that a specific sentence
or sentencing range is the appropriate disposition of the case, or that a
particular provision of the Sentencing Guidelines, or policy statement, or
sentencing factor does or does not apply (such a recommendation or request
binds the court once the court accepts the plea agreement).” Fed. R. Crim. P.
11(c)(1)(C).    Banks’s plea agreement contains no such provision.                    More
fundamentally, in Tyler and Freeman, the plea agreements at issue were
“based on” § 2D1.1. See Tyler, 2012 WL 1396550, at *4; Freeman, 131 S. Ct. at
2699, 2700 (Sotomayor, J., concurring). 4 In contrast, here Banks’s sentence as



       3  Although the defendant in Tyler was a “career offender,” see id. at *2, and the
Government argued that § 4B1.1 should apply to the defendant, see id., the fact that the
defendant was a career offender is not mentioned at all in the court’s reasoning in modifying
the sentence, see id. at *4–*5. Given the complete lack of an explanation for that omission,
there is little that we can make of it.
        4 Justice Sotomayor’s concurring opinion is widely considered to express the holding

in Freeman, as the narrowest grounds on which a majority of the Court agreed in reaching
its judgment. See United States v. Thompson, 714 F.3d 946, 949 (6th Cir. 2013); United States
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                                       No. 13-30839
it stands today is based, not on § 2D1.1, but on § 4B1.1. As such, Tyler, and
Freeman, are inapposite.         See Warner, 565 F. App’x at 313 (holding that
Freeman is inapplicable to defendants sentenced under § 4B1.1 seeking a
sentence reduction based on amendments to the Guidelines for crack cocaine
offenses).
                                   III.   Conclusion
       For the foregoing reasons, the judgment of the district court is
AFFIRMED.




v. Ware, 694 F.3d 527, 533 & n.3 (3d Cir. 2012); United States v. Austin, 676 F.3d 924, 927
(9th Cir. 2012); United States v. Rivera-Martinez, 665 F.3d 344, 348 (1st Cir. 2011); United
States v. Brown, 653 F.3d 337, 340 (4th Cir. 2011); see also United States v. Mitchell, 500 F.
App’x 802, 805 (11th Cir. 2012) (unpublished).
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