           Case: 12-13832    Date Filed: 04/03/2013    Page: 1 of 7


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-13832
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:05-cr-20916-UU-7



UNITED STATES OF AMERICA,

                             Plaintiff-Appellee,

versus

ANDRE HAYNES,
a.k.a. Dre-Bo,

                            Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                               (April 3, 2013)

Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:
                 Case: 12-13832   Date Filed: 04/03/2013   Page: 2 of 7


      Andre Haynes appeals the district court’s denial of his motion to reduce his

sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 750 to the

Sentencing Guidelines. Upon review of the entire record and after consideration of

the parties’ appellate briefs, we affirm.

                                            I.

      In August 2006, Haynes pleaded guilty to conspiracy to distribute more than

50 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Because

of his criminal history, Haynes was sentenced as a career offender. As a career

offender, coupled with his acceptance of responsibility, Haynes faced a guideline

range of 262 to 327 months. Haynes was sentenced to 202 months’

imprisonment—a 60-month downward variance.

      In 2008, Haynes moved for a sentence reduction under § 3582(c)(2) and

based his motion on Amendment 706. The district court denied his motion, stating

that Haynes was ineligible for § 3582(c)(2) relief because he was sentenced as a

career offender, and the changes to U.S.S.G. § 2D1.1 had no bearing on his total

offense level.

      Haynes renewed his motion for a sentence reduction on November 23, 2011.

This time around, Haynes relied on Amendment 750 of the Sentencing Guidelines.

In this motion, Haynes argued that intervening case law concerning the career-

offender provisions now permitted retroactive application of the amended


                                            2
               Case: 12-13832     Date Filed: 04/03/2013    Page: 3 of 7


guidelines to his sentence. Specifically, Haynes argued that his sentence was

“based on” a guideline range that was lowered by the Sentencing Commission, and

that he should not have been considered a career offender.

      The district court denied Haynes’s renewed motion. While it agreed that

Haynes was sentenced “based on” the crack guidelines and that his offense level

was impacted by Amendment 750, it still denied the motion because Haynes’s

sentence was the result of a variance, not a departure. Consequently, the court

remained bound by the career-offender guideline range.

      On appeal, Haynes contends that the district court erred by denying his

renewed § 3582(c)(2) motion. He argues that although he was designated a career

offender by the district court at sentencing, his sentence was, at least in part,

“based on” the crack guidelines, as the court deviated downward from the

career-offender guideline range by 60 months. Haynes claims that United States v.

Moore, 541 F.3d 1323 (11th Cir. 2008), recognized an exception for

career-offender defendants who received downward adjustments from the

career-offender guideline range at sentencing.

                                           II.

      We review de novo the district court’s legal conclusions regarding the scope

of its authority under the Sentencing Guidelines. Id. at 1326. “[W]e may affirm

for any reason supported by the record, even if not relied upon by the district


                                           3
              Case: 12-13832     Date Filed: 04/03/2013    Page: 4 of 7


court.” United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008) (per

curiam) (internal quotation marks omitted).

      Once pronounced, the district court’s authority to modify a sentence of

imprisonment is narrowly limited by statute. United States v. Phillips, 597 F.3d

1190, 1194–95 (11th Cir. 2010). Nevertheless, a district court may modify a

defendant’s term of imprisonment where the defendant was sentenced “based on a

sentencing range that has subsequently been lowered by the Sentencing

Commission.” 18 U.S.C. § 3582(c)(2). When evaluating whether a defendant is

eligible for a reduced sentence, a district court should determine what new

sentence, if any, applies, “by substituting the amended guideline range for the

originally applied guideline range, and then using that new base level to determine

what ultimate sentence it would have imposed.” United States v. Bravo, 203 F.3d

778, 780 (11th Cir. 2000). Then, the district court determines whether, in its

discretion, it will “impose the newly calculated sentence under the amended

guidelines or retain the original sentence.” Id. at 781.

      Sentence reductions under § 3582(c)(2) are not full resentencings, and the

district court cannot make new findings during the proceedings. See Phillips, 597

F.3d at 1198 (requiring the district court in § 3582(c)(2) proceedings to hold

constant all other findings made at the original sentencing). In § 3582(c)(2)

proceedings, a district court must leave “all original sentencing determinations . . .


                                           4
               Case: 12-13832     Date Filed: 04/03/2013    Page: 5 of 7


unchanged with the sole exception of the guideline range that has been amended

since the original sentencing.” Bravo, 203 F.3d at 780 (emphasis in original).

      In his renewed § 3582(c)(2) motion, Haynes argues that his sentence should

be reduced pursuant to Amendment 750. The Fair Sentencing Act of 2010 (FSA),

reflected in Amendment 750 to the Sentencing Guidelines, reduced the statutory

penalties for crack cocaine offenses. See Fair Sentencing Act of 2010 § 2(a), Pub.

L. No. 111-220, 124 Stat. 2372, 2372 (to be codified as amended at 21 U.S.C.

§ 841(b)(1)). As of November 1, 2011, Amendment 750 applied retroactively. See

U.S. Sentencing Guidelines Manual (U.S.S.G.) app. C, amend. 713, at 253.

Nevertheless, in a § 3582(c)(2) proceeding, the district court lacks the authority to

reduce a defendant’s sentence when the amended guideline “does not have the

effect of lowering the defendant’s applicable guideline range.” U.S.S.G.

§ 1B1.10(a)(2)(B).

      In Freeman v. United States, — U.S. —, 131 S. Ct. 2685, 2690 (2011), a

four-justice plurality ruled that § 3582(c)(2) relief is available to a defendant

sentenced pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C) plea

agreement if the agreed-upon sentence is expressly based on a guideline range that

was subsequently lowered by the Sentencing Commission. Nonetheless, we

recently held that Moore remains binding precedent in this circuit even after

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


                                           5
              Case: 12-13832     Date Filed: 04/03/2013    Page: 6 of 7


cert. denied, 133 S. Ct. 568 (2012). We explained that in Freeman, neither the

plurality nor Justice Sotomayor’s concurring opinion—which argued that

sentences imposed pursuant to a Rule 11(c)(1)(C) plea agreement are based on the

plea agreement itself and not the applicable guideline range—“addressed

defendants who were assigned a base offense level under one guideline section, but

who were ultimately assigned a total offense level and guideline range

under § 4B1.1.” Id. Therefore, a defendant who was convicted of a crack-cocaine

offense but sentenced as a career offender was still ineligible for a § 3582(c)(2)

reduction under Amendment 750. See id.

                                         III.

      Here, Haynes was sentenced as a career offender. His ultimate guideline

range was based upon the applicable career offender guidelines, not a guideline

range that was lowered by the Sentencing Guidelines. Thus, the district court did

not err by concluding that it lacked the authority to reduce Haynes’s sentence

under § 3582(c)(2). The district court’s order denying Haynes’s renewed

§3582(c)(2) motion incorrectly concluded that Haynes’s original sentence was

based on the crack guidelines and that his offense level and sentence would have

been impacted by Amendment 750. Such a conclusion, however, does not affect

the ultimate fact at issue: Haynes’s status as a career offender. Thus, we affirm

because the record is clear that Haynes’s sentence was based on his career-offender


                                          6
              Case: 12-13832     Date Filed: 04/03/2013    Page: 7 of 7


status, not the crack guidelines, and, as such, he was ineligible for a sentence

reduction pursuant to § 3582(c)(2).

      AFFIRMED.




                                          7
