[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 12

- 12596

________________________ 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.

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

________________________ (April 18, 2014) Before MARTIN and HILL , Circuit Judge s , and FULLER, * District Judge.

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

Case: 12-12596 Date Filed: 04/18/2014 Page: 1 of 112 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 P resentence Investigation R eport (PSR) was c ompleted 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. Hi s offense level was 37 under the career offender table in USSG § 4B1.1

. 1 B ecause 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

c areer 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.

Case: 12-12596 Date Filed: 04/18/2014 Page: 2 of 113 See USSG § 4B1.1(b). T hus, 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 impri sonment range as 360 months to L ife. Before sente ncing, the United States moved pursuant to USSG § 5K1.1 for a three

- level reduction based on Mr. Tellis ’s “substantial assistance.” If the d istrict c ourt 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 mo nths. Mr. Tellis appeared for sentencing in the d istrict c ourt 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. W e also kn ow that the motion to recognize Mr. Tellis ’s substantial assistance was granted and based on that, he received an additional three

- level reduction

. Ultimat ely 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 Case: 12-12596 Date Filed: 04/18/2014 Page: 3 of 114 O n November 1, 2007 , t he 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.” Uni ted 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, f ollowing 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 re vised its policy statement in § 1B1.10. It sai d 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 o r statutory provision.” USSG § 1B1.10, cmt. 1(A). T o receive sentencing relief under § 3582(c)(2), the Amendment relied upon m ust lower the “applicable guideline range

. ” Id. The
Comm ission 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 determine d before consideration of any departure provision in the Guidelines Manual or any variance.” Id

. In May 2008, the d istrict c ourt ordered a supplemental PSR to establish whether, in light of Amendment 706 and USSG § 1B1.10, Mr. Tellis ’s original

Case: 12-12596 Date Filed: 04/18/2014 Page: 4 of 115 sentence sh ould 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, t he Probation Office stated that the base offense level for Mr. Tellis under Amendment 706 in l ight 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 l evel 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.
T hey noted that the supplemental P SR “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 re ducing it by up to 22 months. Case: 12-12596 Date Filed: 04/18/2014 Page: 5 of 116 On August 19, 2008, t he d istrict c ourt 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 coc aine 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 f ollowing 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 d istrict c ourt 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 Case: 12-12596 Date Filed: 04/18/2014 Page: 6 of 117 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 guidel ines 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 d istrict c ourt 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 d istri ct c ourt 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 lower ed 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 state ments issued by the Sentencing Commission. This Court reviews de novo a d istrict c ourt’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. C t. 568 (2012). We review

Case: 12-12596 Date Filed: 04/18/2014 Page: 7 of 118 the factual finding s underlying the d istrict c ourt’ 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, t he reco rd 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 d istrict c ourt noted this again
i n denying Mr. Tellis ’s Amendment 750 mot ion , 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 c areer 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 oppo sed to a modification proceeding.” But this ignores what happened when the d istrict

c ourt considered Mr. Tellis ’s Amendment 706 motion, and why. When considering Mr. Tellis ’s first motion to reduce his sentence , the d istrict c ourt had to consider “ not on ly whether the amendment reduced his drug quantity base offense

Case: 12-12596 Date Filed: 04/18/2014 Page: 8 of 119 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 d istrict c o urt 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 hi s 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 hi s offense level after the Amendment 706 modification, and thus did not alter the guideline range. For that

reas on , the d istrict c ourt correctly concluded that it had no dis cretion 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) (affirm ing 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 lac ked 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 n ot operate to lower his applicable

Case: 12-12596 Date Filed: 04/18/2014 Page: 9 of 1110 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 no t persuade d us that the se decisions should have be en 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 Moo re 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 ca se 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 undermin ed 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. ,

Case: 12-12596 Date Filed: 04/18/2014 Page: 10 of 1111 Lawson , 686 F.3d at 1321 (“ Moore remains binding precedent because it has not been overru led.”). 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 t he 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 control s. III. CONCLUSION For the reasons above, we affirm t he d istrict c ourt ’s order

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