             Case: 12-13128    Date Filed: 01/10/2013    Page: 1 of 12

                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-13128
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 0:91-cr-06032-DLG-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                         versus

ROMAIN DANIEL,


                                                          Defendant-Appellant.

                          ________________________

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

                                  (January 10, 2013)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      Romain Daniel, pro se, appeals the district court’s denial of his 18 U.S.C.

§ 3582(c)(2) motion for a sentence reduction pursuant to Amendment 750 to the
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Sentencing Guidelines, which lowered the base offense levels applicable to crack

cocaine offenses under U.S.S.G. § 2D1.1. See U.S.S.G. App. C, amend. 750 (Nov.

2011). On appeal, Daniel argues that the Fair Sentencing Act of 2010 (FSA) and

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), are retroactively

applicable and, as applied to him, would result in a lower statutory maximum

sentence. This, he argues, would subsequently lower his Guideline range as a

career offender. Daniel specifically contends that the sentencing court must first

calculate his base offense level on the applicable drug quantity before it may

consider his career-offender status, and that, based on Amendment 750, his initial

base offense level under U.S.S.G. § 2D1.1 would be reduced, resulting in a lower

Guideline range. Daniel also argues that the district court abused its discretion by

failing to grant a hearing under U.S.S.G. § 6A1.3 or Federal Rule of Criminal

Procedure 32 to determine whether his sentence exceeded the statutory maximum.

Upon review of the record and consideration of the parties’ briefs, we affirm.

                               I. BACKGROUND

      In 1991, Daniel pleaded guilty to one count of possession with intent to

distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count One), and one

count of possession of a firearm during and in relation to a drug-trafficking

offense, in violation of 18 U.S.C. § 924(c) (Count Three). The presentence


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investigation report (PSI) calculated Daniel’s base offense level at three, pursuant

to U.S.S.G. § 2D1.1(c)(5), because the offense involved at least 150 grams, but

less than 500 grams, of cocaine base. Daniel was held accountable for 198.2 grams

of cocaine base. Daniel also qualified as a career offender pursuant to U.S.S.G.

§ 4B1.1 because he was at least 18 years old at the time of the instant offense, the

instant offense was a controlled-substance offense, and he had at least two prior

felony convictions for controlled-substance offenses. Because the statutory-

maximum sentence was life imprisonment, the offense level was 37 pursuant to

§ 4B1.1.

      Daniel received a two-level reduction for acceptance of responsibility,

resulting in a total offense level of 35. Based on this total offense level of 35 and a

criminal history category of VI, Daniel’s Guideline range was 292 to 365 months’

imprisonment. Daniel was sentenced to 292 months’ imprisonment as to Count

One, and 60 months’ imprisonment as to Count Three, with the sentences to run

consecutively.

      In 2010, the FSA raised the drug quantity thresholds of crack cocaine

required to trigger the mandatory minimum imprisonment terms. Pub. L. No. 111-

220 § 2(a)(1), 124 Stat. 2372 (2010); U.S.S.G. App. C, amend. 750. In April 2012,

Daniel filed the instant § 3582(c)(2) motion asserting that the district court had


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authority to reduce his sentence based on the Sentencing Commission’s retroactive

Amendment 750. He initially argued that he was not foreclosed from a sentence

reduction based on the fact that he was sentenced as a career offender because that

would be inconsistent with United States v. Bravo, 203 F.3d 778 (11th Cir. 2000),

and U.S.S.G. § 1B1.10. Daniel further argued that the court committed plain error

by imposing a sentence that exceeded the 240-month statutory maximum, in

violation of Apprendi. Daniel also requested a hearing pursuant to U.S.S.G.

§ 6A1.3 because the drug quantity was not charged in the indictment and his

sentence was based upon the applicable statutory maximum of life imprisonment in

§ 841(b)(1)(A), and not the 240-month statutory maximum in § 841(b)(1)(C) that

applied where a conviction involved an undisclosed drug quantity.

      The district court denied Daniel’s motion, holding that Amendment 750 did

not alter the sentencing range for career offenders such as Daniel. Daniel timely

moved for reconsideration and filed a notice of appeal. In his motion for

reconsideration, Daniel argued that the district court abused its discretion by not

granting an evidentiary hearing under § 6A1.3 to resolve the legal question of

whether his offense level should have been 34 based on a statutory maximum of 20

years’ imprisonment. The district court denied the motion for reconsideration

without comment.


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                          II. STANDARD OF REVIEW

      In a § 3582(c)(2) proceeding, we review de novo the district court’s legal

conclusions regarding the scope of its authority under the Sentencing Guidelines.

United States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008). A district court’s

denial of an evidentiary hearing is reviewed for an abuse of discretion. United

States v. Hill, 643 F.3d 807, 874 (11th Cir. 2011) (citation omitted). A district

court abuses its discretion in a § 3582(c)(2) proceeding if it fails to apply the

proper legal standard or follow proper procedures in making its determination.

United States v. Jules, 595 F.3d 1239, 1241–42 (11th Cir. 2010).

                                   III. ANALYSIS

A. Amendment 750 Sentence Reduction

      Amendment 750 to the Sentencing Guidelines, made retroactively applicable

on November 1, 2011, lowered the base offense levels applicable to crack cocaine

offenses under U.S.S.G. § 2D1.1, pursuant to the FSA. See U.S.S.G. App. C,

amend. 750. As a result of those amendments, § 2D1.1(c) now assigns a base

offense level of 30 in cases involving at least 196 grams, but less than 280 grams,

of cocaine base. U.S.S.G. § 2D1.1(c)(5).

      Generally, in considering a motion for a sentence reduction, the district court

must engage in a two-part analysis. Bravo, 203 F.3d at 780. First, the court must



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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. Only the amended

Guideline is changed, and all other Guideline application decisions made during

the original sentencing should remain intact during this step. Id. Second, the court

must decide whether, in its discretion, it will impose the newly calculated sentence

or retain the original sentence. Id. at 781. The court should make this

determination in light of the 18 U.S.C. § 3553(a) factors. Id. A sentencing

adjustment pursuant to § 3582(c)(2) is not a de novo resentencing. Id.

      Where a retroactively applicable Guideline amendment reduces a

defendant’s base offense level, but does not alter the sentencing range upon which

his sentence was based, the district court is not authorized to grant a sentence

reduction pursuant to § 3582(c)(2). Moore, 541 F.3d at 1330. This includes the

situation in which a retroactive amendment of § 2D1.1(c) would result in a lower

base offense level, but the defendant was sentenced as a career offender. See id.

at 1326–30 (holding that a defendant whose original sentence was based upon the

career-offender Guideline, and not § 2D1.1, could not receive a sentence reduction

based on Amendment 706, because it did not have the effect of lowering the

applicable Guideline range). In Moore, this court noted that we undertake a two-


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step analysis in applying an amendment under § 3582(c)(2), but we nonetheless

stated that “Bravo is inapposite because the defendant in that case was not

sentenced as a career offender.” Id. at 1328. Therefore, Bravo did not control in

Moore, where the relevant amendment would have no effect on the defendants’

Guideline ranges due to their statuses as career offenders. Id. at 1328–29.

      We recently addressed whether the FSA could serve as the basis for a

§ 3582(c)(2) motion in United States v. Berry, No. 12-11150, slip op. at 4 (11th

Cir. Nov. 14, 2012). Berry moved for a sentence reduction based on

Amendment 750. Id. at 1–2. We noted that Berry’s offense level and Guidelines

range were based on his status as a career offender under § 4B1.1. Id. at 3. More

importantly, Berry had two prior felony drug convictions and was subject to a

statutory mandatory minimum life sentence under § 841(b)(1)(A), such that his

Guideline range became life imprisonment. Id. at 3–4. Accordingly,

Amendment 750 had no effect on Berry’s Guideline range and the district court

lacked authority to grant his motion. Id. at 4. Berry also argued that he was

eligible for a sentence reduction based on the FSA, which became effective on

August 3, 2010. Id. We stated that “[t]he problem for Berry is the FSA is not a

guidelines amendment by the Sentencing Commission, but rather a statutory




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change by Congress, and thus it does not serve as a basis for a § 3582(c)(2)

sentence reduction in Berry’s case.” Id.

      Even assuming, arguendo, that Berry could have brought his FSA claim in a

§ 3582(c)(2) motion, we stated that the claim would still fail because Berry was

sentenced in 2002, and Dorsey v. United States, 132 S. Ct. 2321 (2012) did not

suggest that the FSA applied retroactively to defendants who were sentenced

before the FSA’s effective date. Id. at 4–7. Instead, Dorsey held only that the

FSA’s new lower mandatory minimums applied “to the post-Act sentencing of pre-

Act offenders.” Id. at 6–7 (emphasis in original). We also noted that, after the

FSA, a defendant with one or more prior convictions for felony drug offenses is

subject to a mandatory minimum of 10 years’ imprisonment and a statutory

maximum of life imprisonment if the offense involved 28 grams or more of crack

cocaine. Id. at 6 n.3. Even if Berry were resentenced under the FSA, his statutory

maximum would remain life imprisonment, and his offense level and applicable

Guideline range under § 4B1.1 would remain the same. Id.

      Finally, in Apprendi, the Supreme Court held that, “[o]ther than the fact of a

prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” 530 U.S. at 490, 120 S. Ct. at 2362–63. We have held, in the


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context of collateral review, that Apprendi is not retroactively applicable.

McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001).

      Here, the district court did not err in denying Daniel’s § 3582(c)(2) motion

to reduce his sentence. Amendment 750 would not affect Daniel’s Guideline range

because of his career-offender status. Moore, 541 F.3d at 1328–29. Although

Amendment 750 would have reduced his initial base offense level under

§ 2D1.1(c), the court ultimately sentenced him as a career offender, pursuant to

§ 4B1.1. Because the career-offender Guideline drove the court’s sentencing

calculations, the application of Amendment 750, which affects only § 2D1.1,

would not lower Daniel’s applicable Guideline range. U.S.S.G. App. C,

amend. 750. Thus, a reduction of his sentence would be contrary to the Sentencing

Commission’s policy statement, and is not authorized by § 3582(c)(2). See Moore,

541 F.3d at 1326–30; U.S.S.G. § 1B1.10(a)(2)(B). Therefore, despite Daniel’s

argument that the court was required to conduct a two-step analysis under Bravo,

Bravo does not control this case. See 203 F.3d at 780.

      Daniel’s argument that the FSA entitles him to a sentence reduction also

fails. See Berry, No. 12-11150, slip op. at 4. Like Berry, even assuming

arguendo, that Daniel could bring his FSA claim in a § 3582(c)(2) motion, that

claim would still fail because Daniel was sentenced in 1991, and the FSA does not


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apply retroactively to defendants who were sentenced before August 3, 2010. Id.

at 4–7 (noting Dorsey’s holding that the FSA applies to pre-Act offenders who are

sentenced after the FSA’s effective date). Also, like Berry, even if Daniel was

entitled to be resentenced under the FSA based on the drug quantity of 198.2

grams, the statutory maximum sentence would remain life imprisonment, and his

career-offender offense level and applicable Guideline range under § 4B1.1 would

remain the same. 21 U.S.C. § 841(b)(1)(B); Berry, No. 12-11150, slip op. at 6 n.3.

      Finally, Daniel’s argument that Apprendi reduces the applicable statutory

maximum from life imprisonment to 20 years because the drug quantity was not

charged in the indictment is misguided. Apprendi does not concern the application

of a retroactive Guideline amendment and does not apply in § 3582(c)(2)

proceedings, because in such proceedings district courts may only substitute the

amended Guideline, leaving all other sentencing decisions intact. See Bravo,

203 F.3d at 780–81. Moreover, Daniel was sentenced before the Supreme Court’s

decision in Apprendi, and this court has held that Apprendi is not retroactively

applicable in the context of a collateral review proceeding. See McCoy, 266 F.3d

at 1258. Accordingly, the district court did not err in denying Daniel’s

§ 3582(c)(2) motion to reduce his sentence.

B. Denial of an Evidentiary Hearing


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      Under U.S.S.G. § 6A1.3(a), “[w]hen any factor important to the sentencing

determination is reasonably in dispute, the parties shall be given an adequate

opportunity to present information to the court regarding that factor.” Disputed

sentencing factors should be resolved at a hearing held in accordance with Federal

Rule of Criminal Procedure 32. U.S.S.G. § 6A1.3(b).

      In Jules, the probation office provided the district court with a

memorandum, which was not docketed or provided to the parties, and stated that

the defendant had been sanctioned in prison three times for marijuana possession

and one time for being in an unauthorized area. 595 F.3d at 1241. The court

acknowledged Jules’s eligibility for a sentence reduction, but relied upon those

sanctions in denying Jules’s § 3582(c)(2) motion. Id. We held that when the

district court relies upon new information, “each party must be given notice of and

an opportunity to contest [the] new information.” Id. at 1245. Notice and

opportunity to respond, however, are not required when the court does not intend

to rely on the new information. Id.

      In this case, unlike Jules, the district court lacked authority to reduce

Daniel’s sentence because he was sentenced as a career offender, and

Amendment 750 does not affect his Guideline range, as discussed above. See

595 F.3d at 1241. As a result, the court did not reach any sentencing factors, and


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there was no sentencing factor “reasonably in dispute” such that a hearing would

be warranted under § 6A1.3. U.S.S.G. § 6A1.3(a). Moreover, the court did not

rely on any new information to which Daniel would be entitled to notice and an

opportunity to contest, but instead determined that it lacked authority to reduce

Daniel’s sentence due to his career-offender status. Jules, 595 F.3d at 1245.

Accordingly, the court did not abuse its discretion in denying a hearing on Daniel’s

§ 3582(c)(2) motion.

      Upon review of the entire record on appeal, and after consideration of the

parties’ appellate briefs, we affirm.

      AFFIRMED.




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