[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-14037

Non-Argument Calendar

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D.C. Docket No. 3:06-cr-00378-TJC-JBT-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

JERMAINE BROWN, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(May 10, 2013)

Before DUBINA, Chief Judge, MARCUS and MARTIN, Circuit Judges.

PER CURIAM:

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Appellant Jermaine Brown, a federal prisoner, appeals from the district 

court’s denial of his motion to reduce his sentence, filed pursuant to 18 U.S.C. 

§ 3582(c)(2) and based on Amendment 750 to the Sentencing Guidelines, which 

reduced offense levels in cases involving crack cocaine. After pleading guilty in 

2007 to possession with intent to distribute cocaine and crack cocaine, in violation 

of 21 U.S.C. § 841(a)(1) and (b)(1)(C), the district court found Brown responsible 

for 12.5 grams of cocaine and 2.85 grams of crack cocaine. Because of his 

criminal history, the district court deemed Brown a career offender and gave him a 

guideline range of 151 to 188 months’ imprisonment. At sentencing, the district 

court emphasized that Brown’s criminal history showed him to be a habitual, 

repeat offender, a “career offender” in lay terms as well as the technical, legal 

sense. Nevertheless, the district court granted a downward variance and sentenced 

Brown to 110 months’ imprisonment. Brown later filed the present motion to 

reduce his sentence, which the district court denied because it had sentenced

Brown as a career offender. 

On appeal, Brown argues that the district court erred in denying his 

§ 3582(c)(2) motion because his sentence was not “based on” the career offender 

Guidelines given that the district court granted a downward variance. He 

acknowledges that in United States v. Moore, we concluded that career offenders 

were not eligible for relief under § 3582(c)(2) and Amendment 706 to the 

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Sentencing Guidelines, which similarly reduced the base offense levels for crack 

cocaine offenses. United States v. Moore, 541 F.3d 1323, 1327‒28 (11th Cir. 

2008). However, he argues that the Supreme Court’s decision in Freeman v. 

United States, 564 U.S. __, 131 S. Ct. 2685 (2011) (plurality opinion), undermined 

Moore. In Freeman, the Court explained 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 or to approve the 

agreement.” Freeman, 564 U.S. at ___, 131 S. Ct. at 2692‒93. Finally, although

recently added commentary to § 1B1.10 of the Guidelines defines the term 

“applicable guideline range” in the context of § 3582(c)(2) to be the guideline 

range calculated by the district court before it applies any variance, Brown 

contends this commentary improperly contradicts the Supreme Court’s decision in 

Freeman. 

“We review de novo a district court’s legal conclusions about the 

[S]entencing [G]uidelines and the scope of its authority under 18 U.S.C. 

§ 3582(c)(2).” United States v. Liberse, 688 F.3d 1198, 1200 n.1 (11th Cir. 2012). 

Section 3582(c)(2) provides that a district court may modify a term of 

imprisonment that was based on a sentencing range that has subsequently been 

lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). A reduction, 

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however, must be “consistent with applicable policy statements issued by the 

Sentencing Commission.” Id. at 1201 (internal quotation marks omitted). The 

applicable policy statements, found in U.S.S.G. § 1B1.10, provide that “[a] 

reduction in the defendant’s term of imprisonment . . . is not authorized under 18 

U.S.C. § 3582(c)(2) if . . . [the] amendment . . . does not have the effect of 

lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). 

The commentary to the 2011 version of the Guidelines defines “applicable 

guideline range” as “the guideline range that corresponds to the offense level and 

criminal history category . . . which is determined before consideration of any 

departure . . . or any variance.” Id. § 1B1.10, comment. (n.1(A)). 

Amendment 750 to the Sentencing Guidelines amended the drug quantity 

table in § 2D1.1(c) to reduce offense levels in crack cocaine cases. See U.S.S.G. 

App. C, Amend. 750. It was made retroactive by Amendment 759, effective 

November 1, 2011. See id., Amend. 759.

We have addressed whether Amendment 706, which was effective on 

November 1, 2007, authorized reductions under § 3582(c)(2) for defendants who 

had been convicted of crack cocaine offenses, but had been sentenced under the 

career offender guidelines. See Moore, 541 F.3d at 1325. We explained that 

§ 3582(c)(2) only authorizes reductions to sentences that were “based on 

sentencing ranges that were subsequently lowered.” Id. at 1327. As Amendment 

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706 did not lower the career offender offense levels, we concluded that it did not 

lower the sentencing range upon which a career offender’s sentence had been 

based. Id. We also explained that the commentary to § 1B1.10 “[made] clear” that 

a § 3582(c)(2) reduction is not authorized where an amendment lowers a 

defendant’s base offense level for the offense of conviction but not the career 

offender sentencing range under which the court sentenced the defendant. Id. at 

1327-28; see also U.S.S.G. § 1B1.10, comment. (n.1(A)).

In Freeman, the Supreme Court, in a plurality opinion, held that a defendant 

sentenced under a plea agreement recommending a specific sentence or sentencing 

range pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) could, in certain 

circumstances, still qualify for a reduced sentence under 18 U.S.C. § 3582(c)(2) if 

the sentence or sentencing range in the plea agreement was “based on” the 

amended guideline range. See Freeman, 564 U.S. at __, 131 S. Ct. at 2690. 

Moreover, the Court noted that its approach comported with the applicable 

guidelines policy statement at the time. See id. at __, 131 S. Ct. at 2692-93. 

We have made clear that Freeman did not overrule or abrogate Moore, and 

that Freeman is inapplicable to a defendant sentenced as a career offender. United 

States v. Lawson, 686 F.3d 1317, 1320-21 (11th Cir.), cert. denied, 133 S.Ct. 568 

(2012); see also U.S.S.G. § 1B1.10, comment. (n.1(A)) (stating that reduction is 

not authorized if “the amendment . . . does not have the effect of lowering the 

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defendant’s applicable guideline range because of the operation of another 

guideline or statutory provision”). In Lawson, we explained that Freeman did not 

address the situation in which defendants were assigned a base offense level under 

one guideline section, but were ultimately assigned a total offense level and 

guideline range under § 4B1.1. See Lawson, 686 F.3d at 1321. Therefore, a 

defendant who was convicted of a crack cocaine offense but sentenced as a career 

offender was still not eligible for a § 3582(c)(2) reduction under Amendment 750. 

See id.

We conclude from the record here that the district court correctly concluded 

that Brown was ineligible for a sentence reduction under § 3582(c)(2) because it 

sentenced him as a career offender, and, thus, his sentence was not based on the

later-amended crack cocaine guideline. Brown’s arguments to the contrary are 

unavailing. First, Brown’s argument that he was not sentenced as a career offender 

because the district court granted a downward variance is unconvincing. The 

commentary to § 1B1.10 defines “applicable guideline range” as the calculated 

range before any variance. See § 1B1.10, comment. (n.1(A)). Second, we reject 

Brown’s argument that this commentary improperly contradicts Freeman because 

the plurality in Freeman acknowledged that its decision comported with applicable 

guideline policy statements at the time, and, moreover, § 3582(c)(2) explicitly 

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incorporates the guideline policy statements. Accordingly, we affirm the district 

court’s denial of Brown’s motion to reduce his sentence. 

AFFIRMED.

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