     Case: 12-30141       Document: 00512185251         Page: 1     Date Filed: 03/25/2013




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

                                                                            FILED
                                                                          March 25, 2013
                                     No. 12-30141
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ELLIS MOSES BARBER,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                       for the Western District of Louisiana
                            USDC No. 2:03-CR-20093-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       Ellis Moses Barber, federal prisoner # 12098-035, appeals following the
district court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence
based on recent amendments to the Sentencing Guidelines for crack cocaine
offenses. Barber pleaded guilty to conspiracy to possess with the intent to
distribute cocaine base and possession of a firearm by a convicted felon. The
district court sentenced Barber to a statutorily mandated life sentence on the
drug charge; however, the court later reduced the sentence to 168 months of

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-30141

imprisonment after the Government filed a motion under FEDERAL RULE            OF

CRIMINAL PROCEDURE 35.
      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence “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 pursuant to 28 U.S.C. 994(o) . . . if such a
reduction is consistent with applicable policy statements issued by the
Sentencing Commission.” § 3582(c)(2). In determining whether to reduce a
sentence under § 3582(c)(2), the district court first determines whether the
defendant is eligible for a sentence modification. Dillon v. United States, 130 S.
Ct. 2683, 2691 (2010). If the court determines that a defendant is eligible for a
sentence modification, it must then consider the applicable 18 U.S.C. § 3553(a)
factors to decide whether a reduction “is warranted in whole or in part under the
particular circumstances of the case.” Id. at 2692. The district court’s decision
whether to reduce a sentence under § 3582(c)(2) is reviewed for an abuse of
discretion. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009).
      Section 1B1.10 of the Sentencing Guidelines limits the circumstances
under which a defendant is entitled to a § 3582(c)(2) sentence reduction based
on retroactive guidelines amendments. Only an individual currently serving a
sentence determined by a guidelines sentencing range lowered by particular
listed amendments is potentially eligible. See U.S.S.G. § 1B1.10(a), p.s. Even
then, a reduction is not authorized if the amendment does not have the effect of
lowering the defendant’s applicable guideline range because of the operation of
another guideline or statutory provision. § 1B1.10, p.s., comment. (n.1(A)).
      In United States v. Anderson, 591 F.3d 789, 791 (5th Cir. 2009), this court
held that the guidelines amendments lowering the offense levels for crack
cocaine offenses did not apply to prisoners sentenced as career offenders. This
court reasoned that a career offender’s sentence “did not derive from the amount
of crack cocaine involved in his offense,” and that a career offender “was not

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                                  No. 12-30141

sentenced based on a sentencing range that was subsequently lowered by the
Sentencing Commission.” Id. at 791 (internal quotation marks and citation
omitted). In United States v. Carter, 595 F.3d 575, at 577-81 (5th Cir. 2010), this
court held that a defendant subject to a statutory minimum term of
imprisonment was ineligible for a sentence reduction under § 3582(c)(2), even
where the district court departed below the statutory minimum pursuant to a
downward departure. This court affirmed the district court’s denial of the
§ 3582(c)(2) motion, holding that when a defendant is “subject to a statutory
minimum sentence above the upper end of his guidelines range, even if the
district court departs downwardly from that minimum under a statutory
exception, 18 U.S.C. § 3582(c)(2) provides no authority to the district court to
later modify the sentence based on amendments to the guideline range.” Id.
at 581.
      Barber argues that in light of the Supreme Court’s decision in Freeman v.
United States, 131 S. Ct. 2685, 2693 (2011), this court should not follow the
precedent established in Anderson and Carter. We reject this contention because
Barber has not shown that Freeman either explicitly or implicitly overrules this
court’s prior decisions. See United States v. Short, 181 F.3d 620, 624 (5th Cir.
1999) (noting that the panel was “bound by the precedent of previous panels
absent an intervening Supreme Court case explicitly or implicitly overruling that
prior precedent[.]”). The Court in Freeman did not address, even tangentially,
either of the factual scenarios presented in Carter or Anderson, or in the instant
case. Barber’s contention that Freeman undermines this court’s prior precedent
in Carter and Anderson lacks merit in either law or logic.
      Moreover, we note that the district court gave an additional reason for
denying Barber’s § 3582(c)(2) motion, the substantial reduction Barber already
received following the Government’s Rule 35 motion. Accordingly, the denial of
Barber’s motion does not warrant reversal. See, e.g., United States v. Levi,
401 F. App’x 982, 983 (5th Cir. 2010) (noting that any error in the district court’s

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determination that the crack cocaine amendment were inapplicable did not
warrant reversal where the court also indicated it would exercise its discretion
not to grant a reduction).
      AFFIRMED.




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