[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-16299

Non-Argument Calendar

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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DERRICK SMITH,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(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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