                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-15734         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        MAY 25, 2012
                                      ________________________        JOHN LEY
                                                                       CLERK
                                D.C. Docket No. 1:06-cr-20501-UU-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                               versus

RODRICK CLAYTON,

llllllllllllllllllllllllllllllllllllllll                           Defendant-Appellant.

                                     ________________________

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

                                           (May 25, 2012)

Before DUBINA, Chief Judge, CARNES and WILSON, Circuit Judges.

PER CURIAM:

         Appellant Rodrick Clayton appeals the district court’s denial of his pro se
motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). In 2007, the

district court sentenced Clayton as a career offender to 150 months’ imprisonment,

which included a 20% reduction based upon his substantial assistance. In his

§ 3582(c)(2) motion, Clayton had argued that, despite being a career offender, he

was entitled to a reduction under Amendment 750 and the Fair Sentencing Act,

which was comparably less than the amended guideline range sentence in order to

reflect his substantial assistance to authorities. On appeal, Clayton acknowledges

that he was sentenced as a career offender, but argues for the first time that he is

entitled to a sentence reduction under § 3582(c)(2) because, in light of United

States v. Freeman, 564 U.S. ___, 131 S. Ct. 2685, 180 L. Ed. 2d 519 (2011),

(plurality opinion) his sentence was “based on” the crack guidelines that were later

amended by the U.S. Sentencing Commission.

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

legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d

983, 984 (11th Cir. 2008). Objections or arguments that are not raised at the

district court are reviewed for plain error. See United States v. Evans, 478 F.3d

1332, 1338 (11th Cir. 2007) (reviewing a claim that there was an insufficient

factual basis for a guilty plea for plain error). To prove plain error, a defendant

must show: “(1) error, (2) that is plain, and (3) that affects substantial rights.”

                                           2
United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007) (internal quotation

marks omitted). If all three conditions are met, we may exercise our discretion to

recognize the error, if it “seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. (internal quotation marks omitted). “A

plain error is an error that is obvious and is clear under current law.” United

States v. Humphrey, 164 F.3d 585, 588 (11th Cir. 1999) (internal quotation marks

omitted).

      Federal courts have the authority to consider reducing the sentence “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.” 18 U.S.C. § 3582(c)(2). A district court must follow a two-step

process in ruling on a § 3582(c)(2) motion. United States v. Bravo, 203 F.3d 778,

780 (11th Cir. 2000). First, the court must recalculate the defendant’s sentence

“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.” Id. In other words, the court “shall determine the amended

guideline range that would have been applicable to the defendant if the

amendment(s) . . . had been in effect at the time that the defendant was sentenced.”

U.S.S.G. § 1B1.10(b)(1). Under the second step, as a matter of discretion, the

                                            3
court must decide whether to retain the original sentence or to re-sentence the

defendant under the amended guideline range. Bravo, 203 F.3d at 781.

      A career offender’s base offense level is determined by using either the

offense level that would ordinarily apply under Chapters 2 and 3 or, if it results in

a higher offense level, the table in § 4B1.1(b). U.S.S.G. § 4B1.1(b). A

§ 3582(c)(2) proceeding does not constitute a de novo re-sentencing and “all

original sentencing determinations remain unchanged with the sole exception of

the guideline range that has been amended since the original sentencing.” Bravo,

203 F.3d at 781. A “reduction under § 3582(c)(2) is not authorized where ‘the

amendment . . . is applicable to the defendant but the amendment does not have

the effect of lowering the defendant’s applicable guideline range because of the

operation of another guideline . . . .’” United States v. Moore, 541 F.3d 1323,

1327-28 (11th Cir. 2008) (quoting U.S.S.G. § 1B1.10, comment. (n.1(A))

(emphasis added). In Moore, we held that defendants who originally were

sentenced under § 4B1.1(b)’s career-offender table were not eligible for

§ 3582(c)(2) relief because their guideline ranges were not based on the

drug-quantity offense levels that had been lowered by Amendment 706. Id.

at 1327-30.




                                          4
      If a defendant designated as a career offender commits an offense that

carries a statutory maximum of 25 years or more of imprisonment and less than

life imprisonment, the applicable offense level is 34. U.S.S.G. § 4B1.1(b)(B).

Part A of Amendment 750 amended § 2D1.1 by revising the Drug Quantity Table

in § 2D1.1(c), and reducing offense levels associated with various amounts of

crack cocaine. U.S.S.G. App. C, amend. 750, Pt. A, cross referencing U.S.S.G.

App. C, amend. 748 (2011). Amendment 750 became effective on November 1,

2011. U.S.S.G. App. C, amend. 750.

      In Freeman, the Supreme Court considered the question of “whether

defendants who enter into plea agreements that recommend a particular sentence

as a condition of the guilty plea may be eligible for relief under § 3582(c)(2).”

Freeman, 564 U.S. at ___, 131 S. Ct. at 2690. A plurality of the Supreme Court

determined that a district court’s imposition of a sentence may be based upon the

Sentencing Guidelines, even if the defendant pleads guilty under Fed.R.Crim.P.

11(c)(1)(C). Id. Therefore, the plurality opinion concluded, § 3582(c)(2) relief

may be available if the sentence was “based on” a guideline range that was

ultimately lowered by the U.S. Sentencing Commission. Id. In a concurring

opinion, Justice Sotomayor agreed with the plurality that the prisoner was eligible

for a sentencing reduction, but held that a term of imprisonment that was imposed

                                          5
pursuant to a Fed.R.Crim.P. 11(c)(1)(C) plea agreement is “based on” the plea

agreement itself, and not the Sentencing Guidelines. 564 U.S. at ___, 131 S. Ct.

at 2695 (Sotomayor, J., concurring in the judgment). However, Justice

Sotomayor’s concurring opinion also determined that, when a plea agreement

“expressly uses a Guidelines sentencing range applicable to the charged offense to

establish the term of imprisonment,” and the U.S. Sentencing Commission

subsequently lowers that range, the term of imprisonment is “based on” the range

used and the defendant is eligible for a sentencing reduction under § 3582(c)(2).

Id. (Sotomayor, J., concurring in the judgment).

      Because the record demonstrates that Clayton was sentenced as a career

offender, we conclude that Amendment 750 to the Sentencing Guidelines does not

change his offense level or his guideline range. In addition, we conclude that the

district court did not plainly err in not applying Freeman to his case because (1)

both the plurality opinion and Justice Sotomayor’s concurring opinion in that case

were limited to the context of a defendant who was sentenced pursuant to a plea

agreement under Fed.R.Crim.P. 11(c)(1)(C), and (2) there is no binding

authority applying the reasoning of Freeman to the context of a career offender

seeking § 3582(c)(2) relief.

      For the aforementioned reasons, we affirm the district court’s order denying

                                          6
Freeman’s motion for a sentence reduction.

      AFFIRMED.




                                       7
