           Case: 12-12446   Date Filed: 03/13/2013   Page: 1 of 7




                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-12446
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 6:06-cr-00178-GAP-GJK-1

UNITED STATES OF AMERICA,



                                                               Plaintiff-Appellee,


                                  versus

LETARIUS R. JOHNSON,


                                                         Defendant-Appellant.

                       ________________________

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

                             (March 13, 2013)

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:
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       Letarius Johnson, a federal prisoner convicted of a crack cocaine offense,

appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce

his 120-month prison term based on Amendment 750 to the Sentencing Guidelines,

which revised the crack cocaine quantity tables in U.S.S.G. § 2D1.1. See U.S.S.G.

App. C, amend. 750 (Nov. 2011). Among other things, Defendant Johnson does

not dispute that his prior convictions qualify him as a career offender under

U.S.S.G. § 4B1.1. After review, we affirm. 1

                                     I. SECTION 3582(c)(2)

       Pursuant to § 3582(c)(2), the district court may reduce a defendant’s prison

term if the defendant was “sentenced to a term of imprisonment based on a

sentencing range that has subsequently been lowered by the Sentencing

Commission pursuant to 28 U.S.C. [§] 994(o).” 18 U.S.C. § 3582(c)(2); see also

U.S.S.G. § 1B1.10(a)(1). However, “[w]here a retroactively applicable guideline

amendment reduces a defendant’s base offense level, but does not alter the

sentencing range upon which his or her sentence was based, § 3582(c)(2) does not

authorize a reduction in sentence.” United States v. Moore, 541 F.3d 1323, 1330

(11th Cir. 2008); see also U.S.S.G. § 1B1.10(a)(2)(B) (providing that a




       1
        “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)
(quotation marks omitted).
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§ 3582(c)(2) reduction is not authorized if the amendment “does not have the effect

of lowering the defendant’s applicable guidelines range”).

      A sentence reduction is not authorized if the amendment does not lower the

defendant’s applicable guidelines range “because of the operation of another

guideline or statutory provision.” U.S.S.G. § 1B1.10 cmt. n.1(A). As such, when

a crack cocaine defendant’s offense level was determined by the career offender

provision, U.S.S.G. § 4B1.1, rather than § 2D1.1(c), the defendant is not eligible

for a § 3582(c)(2) reduction based on amendments to the crack cocaine offense

levels in § 2D1.1(c) because those amendments did not lower the sentencing range

upon which the defendant’s sentence was based. Moore, 541 F.3d at 1327

(involving Amendment 706).

                      II. JOHNSON’S ORIGINAL SENTENCE

      At his sentencing, Johnson was designated a career offender, and his base

offense level of 37 was based on U.S.S.G. § 4B1.1, not on the drug quantity tables

in U.S.S.G. § 2D1.1(c). After a three-level reduction for acceptance of

responsibility, Johnson’s total offense level was 34. With a criminal history

category of VI, Johnson’s advisory guidelines range was 262 to 327 months’

imprisonment.

      The district court, however, granted Johnson two downward departures: (1)

a five-offense-level downward departure under U.S.S.G. § 5K1.1 for substantial


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assistance; and (2) a one-criminal-history-category downward departure under

U.S.S.G. § 4A1.3(b) because his criminal history category over-represented his

criminal history. These two departures changed Johnson’s advisory guidelines

range to 140 to 175 months.

      The district court then granted Johnson a downward variance from that 140-

to-175-months range and imposed a 120-month sentence. Johnson did not appeal

his 120-month sentence.

III. JOHNSON’S § 3582(c)(2) MOTION BASED ON AMENDMENT 750

      In December 2011, Johnson filed a § 3582(c)(2) motion seeking a further

reduction of his sentence based on Amendment 750, which the district court

denied.

      Because Johnson was designated a career offender, we agree with the district

court that Amendment 750 did not have any effect on Johnson’s offense level or

his applicable guidelines range of 262 to 327 months. Thus, under Moore, the

district court did not have the authority to grant Johnson’s § 3582(c)(2) motion.

See Moore, 541 F.3d at 1327-28. Although Johnson argues that Moore was

abrogated by the Supreme Court’s recent decision in Freeman v. United States, 564

U.S. ___, 131 S. Ct. 2685 (2011), this Court has rejected this argument. See

United States v. Lawson, 686 F.3d 1317, 1320-21 (11th Cir.), cert. denied, __ U.S.




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__, 133 S. Ct. 568 (2012) (concluding that, even after Freeman, Moore remains

binding precedent in our Circuit).

      We recognize that Johnson also argues that, despite his admitted career

offender status, he is still eligible for a § 3582(c)(2) reduction because his ultimate

120-month sentence was not “based on” his career offender range of 267 to 327

months. Johnson calculates what his original base offense level and guidelines

range would have been, not as a career offender, but under the drug quantity tables

in § 2D1.1(c). Johnson calculates his base offense level as 30 under the drug

quantity tables, which, with his acceptance of responsibility reduction and his

original criminal history category of V, yields an original advisory guidelines

range of 120 to 150 months. Johnson argues that by granting him two downward

departures and a downward variance and ultimately sentencing him within that

120-to-150-month range, the sentencing court implicitly found that Johnson was

not a career offender, and thus he should benefit from Amendment 750.

      Johnson’s argument lacks merit for several reasons. First, Johnson’s

argument ignores his status as a career offender, which was the basis of his 262 to

327 month advisory guidelines range. The only way Johnson got the 120-month

sentence was due to downward departures and a variance. Second, and in any

event, under the commentary to U.S.S.G. § 1B1.10, the “applicable guideline

range” that must be lowered in order to be eligible for a § 3582(c)(2) reduction is


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“the guideline range that corresponds to the offense level and criminal history

category determined . . . before consideration of any departure provision in the

Guidelines Manual or any variance.” See U.S.S.G. § 1B1.10, cmt. n.1(A)

(emphasis added); see also 18 U.S.C. § 3582(c)(2) (requiring any reduction to be

“consistent with applicable policy statements issued by the Sentencing

Commission”).2

       Third, we also reject Johnson’s argument that he falls within any potential

exception discussed in dicta in Moore. 3 Here, Johnson’s § 4A1.3(b) criminal

history downward departure was not to his offense level, but to his criminal history

category. Thus, the possible exception discussed in Moore does not apply to

Johnson. See Moore, 541 F.3d at 1329-31. In any event, Moore was decided in

2008, and the guidelines commentary, effective November 1, 2011, makes clear

that to be eligible for a § 3582(c)(2) reduction, the amendment must lower the

guidelines range determined before any departure or variance. See U.S.S.G.

§ 1B1.10, cmt. n.1(A).

       2
      The Sentencing Commission amended the commentary to U.S.S.G. § 1B1.10 in
Amendment 759, effective November 1, 2011, before Johnson’s § 3582(c)(2) motion was filed in
December 2011. U.S.S.G. App. C, amend. 759 (Nov. 2011).
       3
         There is a threshold question of whether Moore created any exception to the general rule
that crack cocaine defendants sentenced as career offenders are ineligible for § 3582(c)(2)
sentence reductions based on recent amendments to the crack cocaine offense levels in
§ 2D1.1(c), such as Amendments 706 and 750. Moore simply distinguished two district court
cases in other Circuits in which career-offender defendants received § 4A1.3 criminal history
downward departures that directly reduced their offense levels (not their criminal history
category) and also received § 3582(c)(2) sentence reductions based on Amendment 706. See
Moore, 541 F.3d at 1329-31.
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      In sum, because Johnson’s advisory guidelines range was based on his

career offender status, Johnson’s sentence was not “based on” a subsequently

lowered sentencing range, as required by § 3582(c)(2). Accordingly, the district

court lacked the authority to grant Johnson’s § 3582(c)(2) motion.

      AFFIRMED.




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