             Case: 12-16299   Date Filed: 02/07/2014   Page: 1 of 6


                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                     _____________________________

                              No. 12-16299
                          Non-Argument Calendar
                     _____________________________

                 D.C. Docket No. 3:99-cr-00245-HLA-TEM-2



UNITED STATES OF AMERICA,
                                                       Plaintiff-Appellee,

                                    versus

DERRICK SMITH,
                                                       Defendant-Appellant.

                     _____________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                    _____________________________

                              (February 7, 2014)

Before HULL, MARCUS, and JORDAN, Circuit Judges.

PER CURIAM:

     Derrick Smith, a federal prisoner proceeding through counsel, appeals the

district court’s order partially reducing his sentence pursuant to 18 U.S.C.
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§ 3582(c)(2).    At his original sentencing in 2000, the district court sentenced

Mr. Smith to 360 months in prison after he pled guilty to conspiring to distribute

powder and crack cocaine. Although the district court found that Mr. Smith

qualified as a career offender, with a total offense level of 37 pursuant to U.S.S.G.

§ 4B1.1, it ultimately sentenced him under the drug-quantity guideline, U.S.S.G.

§ 2D1.1, which yielded a higher adjusted offense level of 40. Mr. Smith’s counsel

objected to the career-offender designation at sentencing, but Mr. Smith did not

raise these objections on appeal. It is undisputed that if Mr. Smith were sentenced

today, he would not qualify as a career offender.

      In the § 3582(c)(2) proceedings at issue on appeal, the district court reduced

Mr. Smith’s sentence by 30 months due to the retroactive application of

Amendment 750 to the crack-cocaine guidelines. 1 In so doing, the court applied

the career-offender guideline for the first time, as it resulted in a higher sentencing

range than the amended drug-quantity guideline. On appeal, Mr. Smith argues that

the district court erred in applying the career-offender guideline and refusing to

reduce his sentence to the low end of the amended drug-quantity range.

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

its authority under § 3582(c)(2). United States v. Lawson, 686 F.3d 1317, 1319



1
  The district court had previously reduced Mr. Smith’s sentence by 68 months due to the
retroactive application of Amendment 706 to the crack-cocaine guidelines.
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(11th Cir. 2012). Following a review of the record and the parties’ briefs, we

affirm.

       Mr. Smith argues that the district court erred in limiting the reduction of his

sentence to the low end of the career-offender guideline range because (1) it is now

undisputed that he does not qualify as a career offender; (2) the parties entered a

written plea agreement stipulating to a base offense level under the drug-quantity

guideline, U.S.S.G. § 2D1.1; and (3) the court originally sentenced him pursuant to

his drug-quantity guideline range. We address each of these arguments in turn and

find each unavailing.

       Even if the parties agree that Mr. Smith’s career-offender designation is now

erroneous, § 3582(c)(2) did not authorize the district court to revisit or correct that

designation.2     Under § 3582(c)(2), a district court may reduce a defendant’s

sentence where the guideline range for that sentence is subsequently lowered by

the Sentencing Commission.             In so doing, however, the district court must

“substitute only the [retroactive] amendments . . . for the corresponding guideline

provisions that were applied when the defendant was sentenced and shall leave all


2
  Mr. Smith does not dispute that the district court made a finding as to his career-offender status
during his original sentencing hearing. In his brief on appeal, he states in passing that “any
statements the district court made at sentencing concerning [his] career offender designation
w[ere] essentially dicta because the district court noted that any argument or issue concerning a
career offender designation ‘was neither here nor there.’” Appellant’s Br. at 14. He, however,
fails to further develop this argument. In any event, during the § 3582(c)(2) proceedings below,
counsel for Mr. Smith conceded that the Mr. Smith “was determined to be a career offender” at
his original sentencing hearing. D.E. 366 at 215.
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other guideline application decisions unaffected.” U.S.S.G. § 1B1.10(b)(1). This

policy statement, in essence, requires that “any mistakes committed at the initial

sentencing are imposed anew.” Dillon v. United States, 560 U.S. 817, ___, 130 S.

Ct. 2683, 2694 (2010).         Under Dillon, because Mr. Smith’s career-offender

designation was not affected by Amendment 750, it was “outside the scope of the

proceeding authorized by § 3582(c)(2), and the District Court properly declined to

address [it].” Id. 3

       According to Mr. Smith, the district court nonetheless erred in applying the

career-offender guideline because his plea agreement stipulated that his base

offense level would be calculated pursuant to U.S.S.G. § 2D1.1 and did not include

“any provision or special clause by which Mr. Smith might have been found to

qualify as a career offender.” Appellant’s Br. at 19. But, as Mr. Smith’s plea

agreement expressly provides, such sentencing stipulations and agreements were

not binding on the district court. See D.E. 71 at 3 (“Pursuant to Fed. R. Crim. P.

11(e)(1)(B), the United States and the defendant stipulate and agree that the

defendant’s base offense level be calculated at level 38 pursuant to USSG §§2D1.1

and 1B1.3. The defendant understands that this stipulation or agreement is not

binding on the Court, and if not accepted by the Court, the defendant will not be

3
  Mr. Smith’s counsel conceded as much during the proceedings below. See D.E. 366 at 215
(“And I would agree, your Honor, that [§] 3582 would not be the type of proceeding where [the
district court] would go back and undo [Mr. Smith’s career-offender designation]. That would
probably have to be through a habeas proceeding.”).
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allowed to withdraw from the plea.”). See also Fed. R. Crim. P. 11(e)(1)(B)

(1999) (providing that any sentencing recommendations in a plea agreement “shall

not be binding upon the court”). Accordingly, the plea agreement’s silence as to

Mr. Smith’s career-offender status did not preclude the district court from

designating him as a career offender. And because the career-offender guideline

yielded a higher offense level following the retroactive application of Amendment

750, the district court correctly determined Mr. Smith’s amended sentence under

§ 4B1.1(b).   See U.S.S.G. § 4B1.1(b) (directing courts to determine a career

offender’s offense level by using either the offense level that would ordinarily

apply or the table in § 4B1.1(b), whichever results in a higher offense level).

      Finally, binding circuit precedent bars Mr. Smith’s argument that the district

court should have applied the amended drug-quantity guideline range because his

initial sentence was “based on” the drug-quantity guideline. In support of his

argument, Mr. Smith cites the Supreme Court’s decision in Freeman v. United

States, 131 S. Ct. 2685, 2692-93 (2011) (plurality opinion), which held that

“§ 3582(c)(2) modification proceedings should be available to permit the district

court to revisit a prior sentence to whatever extent the sentencing range in question

was a relevant part of the analytic framework the judge used to determine the

sentence.” But nothing in Freeman required the district court to disregard its prior

finding that Mr. Smith qualified as a career offender under U.S.S.G. § 4B1.1. As

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we held in United States v. Moore, “a reduction under § 3582(c)(2) is not

authorized where [an amendment to the sentencing guidelines] 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.” 541

F.3d 1323, 1327-28 (11th Cir. 2008) (internal quotation marks omitted). Although

Mr. Smith argues that Moore has been undermined to the point of abrogation by

the Supreme Court’s decision in Freeman, he concedes that we have already

rejected this argument. See Lawson, 686 F.3d at 1321. Accordingly, Moore

remains binding precedent in this circuit.

      For the foregoing reasons, we affirm the district court’s decision refusing to

reduce Mr. Smith’s sentence below the amended guideline range.

      AFFIRMED.




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