           Case: 13-10892   Date Filed: 10/03/2013   Page: 1 of 7


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-10892
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 5:01-cr-00010-CAR-CHW-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

DWIGHT ANTHONY GODDARD,
a.k.a. Tony,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                      ________________________

                             (October 3, 2013)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
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      Dwight Anthony Goddard, a career offender, appeals the district court’s

denial of his motion to reduce his 235-month sentence pursuant to 18 U.S.C.

§ 3582(c)(2) based on Guidelines Amendment 750 and the Fair Sentencing Act of

2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010) (FSA). The district court denied

Goddard’s § 3582(c)(2) motion because he was sentenced as a career offender and

his conviction and sentence occurred prior to the FSA’s effective date. On appeal,

Goddard argues that the Supreme Court’s decision in Freeman v. United States,

564 U.S. __, 131 S. Ct. 2685 (2011) (plurality opinion), called into question our

precedent holding that career offenders were not eligible for sentence reductions

based on Amendment 750 because their sentences were based on the career

offender guidelines rather than the crack cocaine guidelines. He further contends

that he is eligible for a sentence reduction under the FSA because Congress

intended for the FSA to be applied retroactively. After careful review, we affirm.

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

authority under § 3582(c)(2). United States v. Moore, 541 F.3d 1323, 1326 (11th

Cir. 2008). Section 3582(c)(2) provides that a district court may reduce a

defendant’s sentence where the defendant is sentenced to a term of imprisonment

based on a sentencing range that has subsequently been lowered by the Sentencing

Commission. 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(1). Any reduction

must be consistent with applicable policy statements issued by the Sentencing


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Commission and must be based on a retroactively applicable guideline amendment

listed in U.S.S.G. § 1B1.10(c). 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(1).

      Amendment 750 to the Sentencing Guidelines, made retroactively applicable

by Amendment 759, made permanent an amendment revising the crack cocaine

quantity tables listed in U.S.S.G. § 2D1.1(c). See U.S.S.G. app. C, amends. 750,

759. The FSA amended the sentencing provisions in 21 U.S.C. § 841(b)(1), the

statute under which Goddard was convicted, by raising the amount of crack

cocaine necessary to trigger the five-year mandatory minimum sentence and forty-

year maximum sentence from five grams to twenty-eight grams. See FSA, Pub. L.

No 111-120, 124 Stat. 2372. Under the FSA, where a defendant has distributed

less than twenty-eight grams of crack cocaine, a maximum sentence of twenty

years’ imprisonment applies. See 21 U.S.C. § 841(b)(1)(C). The Supreme Court

recently held in Dorsey v. United States that the FSA’s reduced statutory

mandatory minimums apply to defendants who committed crack cocaine offenses

before August 3, 2010, but were sentenced after the date the FSA went into effect.

567 U.S. __, 132 S. Ct. 2321, 2326 (2012). The FSA is not retroactive because its

provisions apply to sentences entered after its effective date.

      A career offender’s offense level is determined by U.S.S.G. § 4B1.1(b),

rather than § 2D1.1. The district court lacks the authority to grant § 3582(c) relief

to a career offender where a retroactive guideline amendment reduces his base


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offense level, but does not alter the sentencing range upon which his sentence was

based. See United States v. Lawson, 686 F.3d 1317, 1321 (11th Cir.) (per curiam),

cert. denied, __ U.S. __, 133 S. Ct. 568 (2012); Moore, 541 F.3d at 1330.

      In Freeman, the question before the Supreme Court was whether defendants

who entered into plea agreements under Federal Rule of Criminal Procedure

11(c)(1)(C) were eligible for § 3582(c)(2) relief. 564 U.S. at ___, 131 S. Ct. at

2690. The plurality opinion in Freeman concluded that a defendant who enters

into a Rule 11(c)(1)(C) plea agreement should be eligible to seek § 3582(c)(2)

relief where the district court’s sentencing decision was informed by the

guidelines. Id. at __, 131 S. Ct. at 2693–95. In Justice Sotomayor’s concurrence,

she determined that the defendant was eligible for a sentence reduction under §

3582(c)(2) because the express terms of his Rule 11(c)(1)(C) plea agreement based

his sentence on a guideline sentencing range applicable to the charged offense. Id.

at __, 131 S.Ct. at 2695 (Sotomayor, J., concurring).

      In Lawson, we rejected a defendant’s argument that, in light of the Supreme

Court’s decision in Freeman, he was entitled to a sentence reduction based on

§ 3582(c)(2) and Amendment 750, notwithstanding the fact that his sentence was

based on the career offender guideline. Lawson, 686 F.3d at 1319–21. We further

determined that neither the plurality opinion nor Justice Sotomayor’s concurrence

in Freeman addressed defendants who were assigned a base offense level under


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one guideline section but who were ultimately assigned a total offense level and

guideline range under § 4B1.1. Id. at 1321. Unlike the plea agreement at issue in

Freeman, which explicitly referenced the sentencing guidelines which informed

the agreed-upon sentence, the career offender guidelines do not reference the

underlying offense and its base offense level. In other words, even if Goddard had

been sentenced after the adoption of Amendment 750, his sentence would not be

change because it was based on the career offender sentencing guidelines. Thus,

we held that Freeman did not overrule our holding in Moore. Id.

      Similarly, the FSA does not provide Goddard with retroactive sentencing

relief. In United States v. Berry, we held that a career offender was not entitled to

a sentence reduction under § 3582(c)(2) based on the FSA’s lower mandatory

minimum sentences, concluding that the FSA was a statutory change, not a

guidelines amendment, and therefore could not provide a basis for reducing a

sentence under § 3582(c)(2). 701 F.3d 374, 377 (11th Cir. 2012) (per curiam). We

noted that even if the defendant could bring a FSA claim in a § 3582(c)(2)

proceeding, he would not be eligible for a reduction in sentence because his

conviction and sentence occurred prior to the effective date of the FSA, and the

FSA did not apply retroactively. Id.

      In United States v. Hippolyte, we held that a defendant was not entitled to a

§ 3582(c)(2) sentence reduction pursuant to Amendment 750 and the FSA because


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Amendment 750 did not alter the mandatory minimums in effect at the time of his

sentencing, and the FSA did not apply retroactively to defendants who were

convicted and sentenced prior to the FSA’s effective date. 712 F.3d 535, 541–42

(11th Cir. 2013), petition for cert. filed, (U.S. June 12, 2013) (No. 12-10828).

      The district court did not err in denying Goddard’s § 3582(c)(2) motion.

Although Goddard was initially assigned a base offense level under § 2D1.1, his

total offense level and guideline range were calculated pursuant to § 4B1.1 because

he is a career offender. Thus, Goddard is not eligible for § 3582(c)(2) relief

because Amendment 750 did not alter the sentencing range upon which his

sentence was based. See Lawson, 686 F.3d at 1321; Moore, 541 F.3d at 1330.

Goddard’s reliance on the Supreme Court’s plurality decision in Freeman is

unpersuasive because in Lawson we noted that Justice Sotomayor’s concurrence is

the holding in Freeman, and that Freeman did not overrule our holding in Moore.

Lawson, 686 F.3d at 1321 & n.2.

      As to Goddard’s FSA argument, the FSA is a statutory change, rather than a

guidelines amendment, and thus, it cannot serve as a basis for a § 3582(c)(2)

sentence reduction. See Berry, 701 F.3d at 377. Even if Goddard could raise his

FSA claim in a § 3582(c)(2) proceeding, it would fail because Goddard was

sentenced in 2002, long before the FSA’s effective date, and the FSA does not




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apply retroactively. See Berry, 701 F.3d at 377; Hippolyte, 712 F.3d at 542.

Accordingly, we affirm.

      AFFIRMED.




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