           Case: 11-16106    Date Filed: 11/19/2012   Page: 1 of 5

                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 11-16106
                         Non-Argument Calendar
                       ________________________

                  D. C. Docket No. 0:05-cr-60174-JIC-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

TEVIS COOPER,

                                                          Defendant-Appellant.

                       ________________________

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

                            (November 19, 2012)

Before TJOFLAT, KRAVITCH and EDMONDSON, Circuit Judges.


PER CURIAM:
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      Tevis Cooper, who pleaded guilty to possession with intent to distribute five

grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), appeals the

district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for reduction of

sentence, which was based on Amendment 750. Cooper contends that, pursuant

to Freeman v. United States, __ U.S. __, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011),

the district court erred by concluding that he was ineligible for a section

3582(c)(2) reduction because of his career offender status. No reversible error has

been shown; we affirm.

      We review only for abuse of discretion a district court’s decision to deny

reduction of a defendant’s sentence pursuant to section 3582(c)(2), United States

v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005), but we review de novo its

conclusions about the scope of its legal authority under section 3582(c)(2). United

States v. James, 548 F.3d 983, 984 (11th Cir. 2008).

      In a section 3582(c)(2) proceeding, a district court may not modify a term of

imprisonment unless a defendant was sentenced based on a sentencing range that

has “subsequently been lowered” by the Sentencing Commission. See 18 U.S.C. §

3582(c)(2). The applicable policy statements provide that a sentence reduction is

not authorized under section 3582(c)(2) if “‘the amendment does not have the

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

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operation of another guideline or statutory provision.’” United States v. Moore,

541 F.3d 1323, 1327-28 (11th Cir. 2008) (quoting U.S.S.G. § 1B1.10, comment.

(n.1(A))).

      Amendment 750, which has been made retroactive, adjusted the base

offense levels listed in the Drug Quantity Table in U.S.S.G. § 2D1.1(c) to limit the

sentencing disparity between powder cocaine and crack cocaine offenses. See

U.S.S.G. App. C., amend. 750; U.S.S.G. § 1B1.10(c). Nevertheless, if a defendant

was sentenced as a career offender, his base offense level was determined under

the career-offender guideline in U.S.S.G. § 4B1.1(b): the drug-quantity guideline

in § 2D1.1(c) ultimately played no role in his sentence. Moore, 541 F.3d at 1327.

      Although Amendment 750 might have reduced Cooper’s base offense level

under section 2D1.1, it would not have lowered his total offense level or his

applicable guidelines range because the district court had sentenced Cooper as a

career offender under section 4B1.1. Under this enhancement, Cooper was subject

to a base offense level of 34, without regard to the quantity of crack cocaine

involved in his offense conduct.

      Contrary to Cooper’s assertion, the Supreme Court’s decision in Freeman

offers him no relief. In Freeman, five justices of the Supreme Court ruled that

entering into a Fed.R.Crim.P. 11(c)(1)(C) plea agreement did not categorically bar

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a defendant from obtaining relief pursuant to section 3582(c). Freeman, __ U.S. at

__, 131 S.Ct. at 2695 (Sotomayor, J., concurring); see Marks v. United States, 430

U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977) (noting that, “the holding

of the Court may be viewed as that position taken by those Members who

concurred in the judgments on the narrowest grounds.”). Instead, the Court

explained, where such an agreement “expressly uses a Guidelines sentencing range

to establish the term of imprisonment, and that range is subsequently lowered by

the Commission, the defendant is eligible for sentence reduction under

§ 3582(c)(2).” Id. at __, 131 S.Ct. at 2698.

      This Freeman circumstance is not the situation here. Cooper’s 188-month

sentence was not based on a sentence jointly agreed-upon by the parties in a plea

agreement nor did it expressly rely on a guideline range that was later reduced.

Instead, Cooper’s sentence was based entirely on the career offender enhancement

provisions, which do not incorporate section 2D1.1’s drug quantity table, and thus,

was unaffected by Amendment 750.

      Cooper is like the movant in Moore. Amendment 750 reduced his base

offense level but did not lower his applicable guideline range, which was dictated

by his career offender status. Accordingly, Cooper is not eligible for a section




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3582(c)(2) sentence reduction, and the district court did not abuse its discretion by

denying him one.*

       AFFIRMED.




   *
     Cooper offers no support for his dubious argument that the district court might have quietly
rejected the career-offender enhancement at sentencing and instead imposed an above-Guidelines
sentence that was, in fact, based on the drug quantity table. His argument therefore is waived.
See United States v. Flores, 572 F.3d 1254, 1265 n.3 (11th Cir. 2009) (where a plaintiff identifies
an argument on appeal but fails to provide supporting authority or facts, we deem the argument
not briefed, and thus waived).

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