     Case: 18-40675      Document: 00514904654         Page: 1    Date Filed: 04/05/2019




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


                                    No. 18-40675
                                                                                 FILED
                                                                              April 5, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SHAWN LYNN DAVIS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:08-CR-190-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Shawn Lynn Davis moved the district court to reduce his sentence based
on Amendment 782 to the U.S. Sentencing Guidelines, which altered the base
offense levels for certain drugs set forth in U.S.S.G. § 2D1.1(c). The district
court denied Davis’s motion and subsequent motion for reconsideration. Davis
appeals. We affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-40675

      In 2009, Davis pleaded guilty to conspiracy to possess with intent to
distribute 50 grams or more of cocaine base (crack cocaine). A presentence
report (PSR) assessed a base offense level of 26 under the drug quantity table
in § 2D1.1(c). But because Davis was convicted of two prior drug offenses, the
PSR concluded he was a career offender. It increased his base offense level
under U.S.S.G. § 4B1.1(b)(A). After applying the career offender enhancement
and the acceptance of responsibility adjustment, Davis’s final offense level was
35, his criminal history was category VI, and his advisory guidelines range was
292 to 365 months in prison. The district court sentenced him to 300 months.
      The district court then twice reduced Davis’s term of imprisonment: to
218 months after granting Davis’s motion based on the Fair Sentencing Act of
2010; and then again to 164 months.
      A defendant “sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing Commission” may
seek a sentence reduction that “is consistent with applicable policy statements”
from the Commission. 18 U.S.C. § 3582(c)(2). A sentence reduction is not
consistent with the Commission’s policy statements if an amendment “does not
have the effect of lowering the defendant’s applicable guideline range.”
U.S.S.G. § 1B1.10(a).
      Here, Davis was sentenced as a career offender under § 4B1.1. Davis’s
arguments that the Government somehow “eliminated” his career offender
guideline range are unavailing. The district court referenced that range in
Davis’s two prior resentencings. Therefore, because Davis was sentenced as a
career offender under § 4B1.1, Amendment 782 does not have the effect of
lowering his applicable guideline range. See United States v. Anderson, 591
F.3d 789, 790-91 (5th Cir. 2009) (holding that “[t]he crack cocaine guideline
amendments do not apply to prisoners sentenced as career offenders,” because



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                                 No. 18-40675

their offense levels do “not depend on the amount of drugs involved” but are
“moored to the statutory maximum penalty of the underlying crime”). That
Davis’s sentence was previously reduced for other reasons does not affect his
applicable guideline range as a career offender. See United States v. Banks,
770 F.3d 346, 348-49 (5th Cir. 2014). Amendment 782 simply does not apply
to Davis as a career offender.    Accordingly, the district court lacked the
authority to grant his motion as a matter of law.         See United States v.
Quintanilla, 868 F.3d 315, 321 (5th Cir. 2017) (reversing sentence reductions
pursuant to Amendment 782 to seventeen defendants whose applicable
guideline ranges were based on the career offender guideline in § 4B1.1).
      The district court’s order is AFFIRMED. Davis’s motion to expedite this
appeal is DENIED as moot, and his motion to seal is GRANTED.




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