[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-12596

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D.C. Docket No. 6:01-cr-00089-JA-GJK-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EMORY LEE TELLIS, 

a.k.a. Emmit,

a.k.a. Fat Head,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(April 18, 2014)

Before MARTIN and HILL, Circuit Judges, and FULLER,* District Judge.

 * Honorable Mark E. Fuller, United States District Judge for the Middle District of Alabama, 

sitting by designation.

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MARTIN, Circuit Judge:

Emory Lee Tellis is currently serving a 188-month sentence after pleading

guilty to conspiracy to sell crack cocaine. In this appeal he challenges the district 

court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based on 

Amendment 750 to the United States Sentencing Guidelines (USSG). After a 

careful review of the parties’ briefs and the relevant caselaw, and with the benefit 

of oral argument, we affirm.

I. FACTS AND PROCEDURAL HISTORY

A. INITIAL SENTENCING

In June 2001, Mr. Tellis was indicted for conspiracy to sell crack cocaine in 

violation of 21 U.S.C. § 841(a)(1). He pleaded guilty on October 2, 2001. 

Mr. Tellis’s Presentence Investigation Report (PSR) was completed in 

January 2002. The PSR stated that he was a career offender as defined in USSG 

§ 4B1.1. Mr. Tellis did not object to the PSR’s designation of him as a career 

offender. His offense level was 37 under the career offender table in USSG 

§ 4B1.1.

1

 Because of the amount of crack involved, Mr. Tellis’s base offense level 

was 38 under the drug quantity table in USSG § 2D1.1. The offense level for a 

career offender is the higher value calculated using USSG §§ 2D1.1 and 4B1.1. 

 1 The Probation Office’s calculation of Mr. Tellis’s career offender offense level assumed he 

would not receive any reduction for acceptance of responsibility. 

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See USSG § 4B1.1(b). Thus, the PSR stated that “since the adjusted offense level 

is 38, career offender status does not impact the total offense level.” 

Based upon an offense level of 38, the PSR calculated the guideline 

imprisonment range as 360 months to Life. Before sentencing, the United States 

moved pursuant to USSG § 5K1.1 for a three-level reduction based on Mr. Tellis’s 

“substantial assistance.” If the district court had adopted the offense level of 38 

and applied the three-level reduction for substantial assistance, Mr. Tellis’s offense 

level would have been 35 and his guideline range would have been 292 to 365 

months. With an additional three-level reduction for acceptance of responsibility, 

his offense level would have been 32 and his guideline range 210 to 262 months.

Mr. Tellis appeared for sentencing in the district court on January 15, 2002. 

The sentencing hearing was not transcribed, and the court reporter’s notes have 

been destroyed. The parties here agree that Mr. Tellis received a three-level 

reduction pursuant to USSG § 3E1.1 for accepting responsibility. We also know 

that the motion to recognize Mr. Tellis’s substantial assistance was granted and 

based on that, he received an additional three-level reduction. Ultimately Mr. 

Tellis was sentenced to 210-months imprisonment, which was the low end of the 

range for an offense level of 32—a base level of 38 under USSG § 2D1.1 minus 

six points for the substantial assistance and acceptance of responsibility reductions. 

B. FIRST MODIFICATION MOTION

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On November 1, 2007, the Sentencing Commission promulgated 

Amendment 706. USSG App. C, Amend. 706 (2007). “The effect of Amendment 

706 is to provide a two-level reduction in base offense levels for crack cocaine 

offenses.” United States v. Moore, 541 F.3d 1323, 1325 (11th Cir. 2008). On 

March 3, 2008, the Commission made Amendment 706 retroactively applicable. 

USSG App C., Amend. 713 (2008). Therefore, following the adoption of these 

Amendments Mr. Tellis’s base offense level under USSG § 2D1.1 was lowered 

from 38 to 36 given the amount of crack involved in this case.

Also on March 3, 2008, the Commission revised its policy statement in 

§ 1B1.10. It said that a defendant is not eligible for a sentence reduction where an 

amendment “does not have the effect of lowering [his] applicable guideline range 

because of the operation of another guideline or statutory provision.” USSG 

§ 1B1.10, cmt. 1(A). To receive sentencing relief under § 3582(c)(2), the 

Amendment relied upon must lower the “applicable guideline range.” Id. The 

Commission defined the applicable guideline range as “the guideline range that 

corresponds to the offense level and criminal history category determined pursuant 

to [USSG §] 1B1.1(a), which is determined before consideration of any departure 

provision in the Guidelines Manual or any variance.” Id.

In May 2008, the district court ordered a supplemental PSR to establish

whether, in light of Amendment 706 and USSG § 1B1.10, Mr. Tellis’s original 

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sentence should be reduced. One week later, Mr. Tellis moved for a modification 

of his sentence pursuant to Amendment 706. 

In its response to the district court order, the Probation Office stated that the 

base offense level for Mr. Tellis under Amendment 706 in light of the amount of 

drugs involved would be 36. “However,” it continued, “pursuant to the career 

offender provisions of USSG § 4B1.1, the offense level is enhanced to 37, and with 

a 3 level reduction for acceptance of responsibility, the total offense level becomes 

34.” Applying the three-level reduction pursuant to substantial assistance as before 

would then result in an offense level of 31, which has an imprisonment range of 

188 to 235 months. Thus, to reach the offense level of 31, the Probation Office 

relied on the career offender offense level in USSG § 4B1.1 as a starting point.

On July 18, 2008, Mr. Tellis and the United States filed a joint stipulation. 

They noted that the supplemental PSR “correctly states that, pursuant to 18 U.S.C. 

§ 3582(c)(2), the defendant is eligible for a reduction in his previously-imposed 

term of imprisonment.” It added that the PSR is also correct that:

pursuant to USSG § 1B1.10, the retroactive application 

of Amendments 706 and 711 . . . makes the defendant 

eligible for a reduction in his sentence to a total term of 

imprisonment of 188 months. Therefore, pursuant to 18 

U.S.C. § 3582(c)(2), the Court may adjust the 

defendant’s previously-imposed sentence by reducing it 

by up to 22 months.

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On August 19, 2008, the district court reduced Mr. Tellis’s sentence to a term of 

188 months. 

C. SECOND MODIFICATION MOTION

In November 2011, the Commission promulgated Amendment 750. This 

Amendment “revised the crack cocaine quantity tables in U.S.S.G. § 2D1.1 to 

conform to the Fair Sentencing Act of 2010.” United States v. Glover, 686 F.3d 

1203, 1204 (11th Cir. 2012). Later, Amendment 750 was also made retroactive, 

allowing sentence reductions under 18 U.S.C. § 3582(c)(2). USSG App. C, 

Amend. 759. Base offense levels were lowered for certain quantities of crack 

cocaine offenses, and following the adoption of Amendment 750 Mr. Tellis’s base 

offense level under USSG § 2D1.1 was 34 instead of 38 originally, or 36 after 

Amendment 706. USSG App. C, Amend. 759 (2011); USSG § 2D1.1(c)(3).

On November 10, 2011, Mr. Tellis moved to reduce his sentence pursuant to 

Amendment 750. The district court requested another supplemental PSR. This 

time Probation stated that Mr. Tellis was “not eligible for a sentence reduction 

because he was sentenced as a career offender.” The government opposed Mr. 

Tellis’s motion, arguing that:

[w]hen the Court applied Amendment 706 in 2008, the 

offense level under the career offender guideline became 

the higher of the two and the Court reduced the 

defendant’s sentence in accordance with the new range as 

dictated by the career offender guideline. . . . When the 

reduction under Amendment 750 is applied and the 

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amended base offense level is substituted for the original 

base offense level under the drug quantity table, the 

career offender level remains the higher of the two and, 

therefore, the guidelines range remains the same as in 

2008.

Mr. Tellis maintained “that the career offender guideline was not applied at his 

original sentencing, and thus cannot be applied in these proceedings.” 

The district court denied Mr. Tellis’s motion to reduce under Amendment 

750, stating: “Defendant is not, however, eligible for further reduction because his 

career offender guideline range is now greater than the drug offense level.” Mr. 

Tellis timely appealed. 

II. ANALYSIS

After a person is sentenced, a district court may modify their sentence in 

only limited situations. One of those situations is set forth in 18 U.S.C. 

§ 3582(c)(2):

[I]n the case of a defendant who has been sentenced to a 

term of imprisonment based on a sentencing range that 

has subsequently been lowered by the Sentencing 

Commission . . . the court may reduce the term of 

imprisonment, after considering the factors set forth in 

section 3553(a) to the extent that they are applicable, if 

such a reduction is consistent with applicable policy 

statements issued by the Sentencing Commission.

This Court reviews de novo a district court’s conclusions about the scope of 

its legal authority under 18 U.S.C. § 3582(c)(2). United States v. Lawson, 686 

F.3d 1317, 1319 (11th Cir. 2012), cert. denied 133 S. Ct. 568 (2012). We review 

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the factual findings underlying the district court’s legal conclusions for clear error. 

United States v. Davis, 587 F.3d 1300, 1303 (11th Cir. 2009). A defendant bears 

the burden of demonstrating that a retroactive Amendment has actually lowered his 

guideline range. United States v. Hamilton, 715 F.3d 328, 337 (11th Cir. 2013).

A. DISCUSSION OF RECORD

Although Mr. Tellis argues that the record does not conclusively establish 

that he was considered to be a career offender, the record contradicts this claim. 

The January 2002 PSR stated explicitly that Mr. Tellis was a career offender. The 

United States has advised us that the June 2008 PSR also designated Mr. Tellis as a 

career offender, and Tellis has not disputed this. The district court noted this again 

in denying Mr. Tellis’s Amendment 750 motion, stating that he “was determined to 

be a career offender” when he appeared in 2002. And in 2008 Mr. Tellis stipulated 

to a sentence modification that was calculated based on his career offender status.

Mr. Tellis next argues that because his original sentence was based on drug 

quantity, rather than the career offender guideline range, relying on the career 

offender provisions now “would constitute a re-sentencing proceeding as opposed 

to a modification proceeding.” But this ignores what happened when the district 

court considered Mr. Tellis’s Amendment 706 motion, and why. When 

considering Mr. Tellis’s first motion to reduce his sentence, the district court had to 

consider “not only whether the amendment reduced his drug quantity base offense 

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level, but also its determination at his original sentencing that [he] was a career 

offender.” United States v. Moreland, 355 F. App’x 376, 378 (11th Cir. 2009) (per 

curiam). The district court did so, and so was required to modify Mr. Tellis’s 

sentence based on his career offender status.

Because Mr. Tellis’s Amendment 706 modification properly resulted from 

his career offender status, the district court did not err in denying his motion to 

modify his sentence pursuant to Amendment 750. In light of Mr. Tellis’s status as 

a career offender, Amendment 750 did not lower his offense level after the 

Amendment 706 modification, and thus did not alter the guideline range. For that 

reason, the district court correctly concluded that it had no discretion to lower his 

sentence.

We have affirmed similar results in several unpublished cases. See, e.g., 

United States v. Florence, 503 F. App’x 796, 797–99 (11th Cir. 2013) (per curiam)

(affirming district court’s guideline range modification pursuant to § 4B1.1 

although defendant originally sentenced pursuant to § 2D1.1); United States v. 

Hobbs, 491 F. App’x 113, 115 (11th Cir. 2012) (per curiam) (affirming district 

court’s determination it lacked discretion to modify pursuant to Amendment 750 

after career offender was originally sentenced based on drug quantity table and had 

sentence reduced pursuant to Amendment 706 because “in light of his designation 

as a career offender, Amendment 750 did not operate to lower his applicable 

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Guidelines range”). See also United States v. Hubbard, 508 F. App’x 561, 562

(7th Cir. 2013) (rejecting argument that applying career offender guideline in 

sentence modification pursuant to Amendment 750 after initially sentencing based 

on drug quantity table is a resentencing). Mr. Tellis has not persuaded us that these 

decisions should have been decided differently.

B. FREEMAN DID NOT OVERRULE MOORE

Finally, neither are we persuaded by Mr. Tellis’s argument that Freeman v. 

United States, 131 S. Ct. 2685 (2011), has undermined our decision in Moore. In 

Moore, this Court held that a retroactive guideline amendment does not trigger 18 

U.S.C. § 3582(c)(2) when a sentence was based on the career offender guideline 

and the amendment does not alter the guideline range. 541 F.3d at 1330. Mr. 

Tellis argues that Moore was called into question by Freeman, where the Supreme 

Court examined a § 3582(c)(2) petition filed after the Commission adopted 

Amendment 706. No opinion received a majority of the Court in Freeman, and it 

did not address USSG § 4B1.1. Rather, the case addressed whether defendants 

who entered into a plea agreement pursuant to Federal Rule of Criminal Procedure 

11(c)(1)(c) were eligible for § 3582(c)(2) relief. 131 S. Ct. at 2690.

Mr. Tellis argues that “the reasoning and holding in Moore was undermined 

to the point of abrogation by the subsequent Supreme Court decision in Freeman.” 

This Court has rejected that argument in Lawson and many cases since. See, e.g., 

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Lawson, 686 F.3d at 1321 (“Moore remains binding precedent because it has not 

been overruled.”). Mr. Tellis argues Lawson is distinguishable from his case 

because he was not sentenced within the career offender guideline range at his 

initial sentencing. But the key is whether Mr. Tellis’s term of imprisonment is 

based on the career offender guideline. Because Mr. Tellis’s modification in 2008 

was based on his career offender status, it is, and therefore Moore controls.

III. CONCLUSION

For the reasons above, we affirm the district court’s order.

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