IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-30195

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARVIN EUGENE CHAPPELL,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 3:03-CR-30013-3

Before SMITH, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

Marvin Eugene Chappell, federal prisoner # 11775-035, appeals the

district court’s denial of a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) 

based upon the amendments to the Guidelines that implemented the Fair

Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372. 

Pursuant to a written plea agreement, Chappell pleaded guilty to

conspiracy to distribute 50 grams or more of cocaine base. In the presentence

report (PSR), the probation officer found that Chappell was responsible for the

United States Court of Appeals

Fifth Circuit

F I L E D

September 20, 2012

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 12-30195

equivalent of 13,782 kilograms of marijuana since the trafficking conduct

involved both cocaine base and marijuana. See United States Sentencing

Guidelines (USSG) § 2D1.1, cmt n.10. She determined his base offense level to

be 36. The probation officer also determined that Chappell’s base offense level

was 37 under the career offender provision of the USSG § 4B1.1 because of

Chappell’s prior Texas convictions for aggravated rape and delivery of a

controlled substance. Thus, the higher career offender range governed. See id.

§ 4B1.1(b). Applying a two-level reduction for acceptance of responsibility, she

calculated Chappell’s total offense level at 35. Based upon Chappell’s total

offense level of 35 and criminal history category of VI, the probation officer

determined that Chappell’s guidelines sentence range was 292-365 months of

imprisonment and 10 years of supervised release. The district court adopted the

guidelines sentence range set forth in the PSR and sentenced Chappell to 292

months of imprisonment and 10 years of supervised release. 

In 2011, the district court considered whether to reduce Chappell’s

sentence pursuant to § 3592(c)(2) based upon the amendments to the Guidelines

that implemented the Fair Sentencing Act of 2010, which reduced the base

offense levels for crack cocaine offenses and made those reductions retroactive. 

The district court denied relief, finding that Chappell was ineligible for a

sentence reduction because he was sentenced as a career offender. Chappell

timely appealed.

Citing Freeman v. United States, 131 S. Ct. 2685 (2011), Chappell argues

that he was eligible for a sentence reduction under § 3582(c)(2) even though he

was sentenced as a career offender. We review the district court’s ruling for

abuse of discretion. United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009).

The district court did not abuse its discretion by denying relief in this case. 

Our precedent holds that the guidelines amendment lowering the base offense

levels for crack cocaine offenses does “not apply to prisoners sentenced as career

offenders.” United States v. Anderson, 591 F.3d 789, 791 (5th Cir. 2009). In

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Anderson, the defendant was assessed a higher offense level because he was

determined to be a career offender and not because he had an underlying crack

cocaine offense. “Because the career offender base level exceeded the general

base level, the career offender sentencing range governed.” Id. at 790; see also

USSG § 4B1.1(b) (“[I]f the offense level for a career offender from the table in

this subsection is greater than the offense level otherwise applicable, the offense

level . . . in this subsection shall apply.”) 

Two years later in Freeman, a four-justice plurality opined that a sentence

based upon a guidelines range that was subsequently lowered makes a

defendant eligible for a sentence reduction under § 3582(c)(2) even if the

defendant agreed to the sentence in a plea agreement entered into under Federal

Rule of Criminal Procedure 11(c)(1)(C). Freeman, 131 S. Ct. at 2692-93. Justice

Sotomayor concurred in the plurality’s opinion and opined that defendants are

eligible for a sentence reduction under § 3582(c)(2) if the plea agreement

expressly based the sentence on a guidelines range that was subsequently

lowered. Id. at 2695 (Sotomayor, J., concurring). 

This Court’s holding in Anderson is consistent with Freeman; in Anderson,

the defendant’s sentence was based on his status as a career offender, and not

on the crack cocaine offense, because the career offender base level exceeded the

general base level that would otherwise have applied. See Anderson, 591 F.3d

at 790. Thus, his sentence was not “based on” his crack cocaine conviction, and

it would not have changed following the Fair Sentencing Act amendments. 

Likewise, Chappell was sentenced based on the career offender provision,

not based on the base sentence for crack cocaine. Because the career offender

provision established a base level higher than that for crack cocaine, the Fair

Sentencing Act’s guidelines amendments do not affect his sentence under

Freeman.

Accordingly, the Government’s motion for summary affirmance is

GRANTED, and the judgment of the district court is AFFIRMED. The

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Government’s alternative motion for an extension of time in which to file a brief

is DENIED as moot.

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