[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-12446

Non-Argument Calendar

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D.C. Docket No. 6:06-cr-00178-GAP-GJK-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LETARIUS R. JOHNSON,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(March 13, 2013)

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM: 

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Letarius Johnson, a federal prisoner convicted of a crack cocaine offense, 

appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce 

his 120-month prison term based on Amendment 750 to the Sentencing Guidelines, 

which revised the crack cocaine quantity tables in U.S.S.G. § 2D1.1. See U.S.S.G. 

App. C, amend. 750 (Nov. 2011). Among other things, Defendant Johnson does 

not dispute that his prior convictions qualify him as a career offender under 

U.S.S.G. § 4B1.1. After review, we affirm.1

I. SECTION 3582(c)(2)

Pursuant to § 3582(c)(2), the district court may reduce a defendant’s prison 

term if the defendant was “sentenced to a term of imprisonment based on a 

sentencing range that has subsequently been lowered by the Sentencing 

Commission pursuant to 28 U.S.C. [§] 994(o).” 18 U.S.C. § 3582(c)(2); see also

U.S.S.G. § 1B1.10(a)(1). However, “[w]here a retroactively applicable guideline 

amendment reduces a defendant’s base offense level, but does not alter the 

sentencing range upon which his or her sentence was based, § 3582(c)(2) does not 

authorize a reduction in sentence.” United States v. Moore, 541 F.3d 1323, 1330 

(11th Cir. 2008); see also U.S.S.G. § 1B1.10(a)(2)(B) (providing that a

 

1

“We review 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. James, 548 F.3d 983, 984 (11th Cir. 2008)

(quotation marks omitted).

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§ 3582(c)(2) reduction is not authorized if the amendment “does not have the effect 

of lowering the defendant’s applicable guidelines range”). 

A sentence reduction is not authorized if the amendment does not lower the 

defendant’s applicable guidelines range “because of the operation of another 

guideline or statutory provision.” U.S.S.G. § 1B1.10 cmt. n.1(A). As such, when 

a crack cocaine defendant’s offense level was determined by the career offender 

provision, U.S.S.G. § 4B1.1, rather than § 2D1.1(c), the defendant is not eligible 

for a § 3582(c)(2) reduction based on amendments to the crack cocaine offense 

levels in § 2D1.1(c) because those amendments did not lower the sentencing range 

upon which the defendant’s sentence was based. Moore, 541 F.3d at 1327

(involving Amendment 706).

II. JOHNSON’S ORIGINAL SENTENCE

At his sentencing, Johnson was designated a career offender, and his base 

offense level of 37 was based on U.S.S.G. § 4B1.1, not on the drug quantity tables 

in U.S.S.G. § 2D1.1(c). After a three-level reduction for acceptance of 

responsibility, Johnson’s total offense level was 34. With a criminal history 

category of VI, Johnson’s advisory guidelines range was 262 to 327 months’ 

imprisonment.

The district court, however, granted Johnson two downward departures: (1) 

a five-offense-level downward departure under U.S.S.G. § 5K1.1 for substantial 

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assistance; and (2) a one-criminal-history-category downward departure under 

U.S.S.G. § 4A1.3(b) because his criminal history category over-represented his 

criminal history. These two departures changed Johnson’s advisory guidelines 

range to 140 to 175 months.

The district court then granted Johnson a downward variance from that 140-

to-175-months range and imposed a 120-month sentence. Johnson did not appeal 

his 120-month sentence.

III. JOHNSON’S § 3582(c)(2) MOTION BASED ON AMENDMENT 750

In December 2011, Johnson filed a § 3582(c)(2) motion seeking a further 

reduction of his sentence based on Amendment 750, which the district court 

denied.

Because Johnson was designated a career offender, we agree with the district 

court that Amendment 750 did not have any effect on Johnson’s offense level or 

his applicable guidelines range of 262 to 327 months. Thus, under Moore, the 

district court did not have the authority to grant Johnson’s § 3582(c)(2) motion. 

See Moore, 541 F.3d at 1327-28. Although Johnson argues that Moore was 

abrogated by the Supreme Court’s recent decision in Freeman v. United States, 564 

U.S. ___, 131 S. Ct. 2685 (2011), this Court has rejected this argument. See

United States v. Lawson, 686 F.3d 1317, 1320-21 (11th Cir.), cert. denied, __ U.S. 

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__, 133 S. Ct. 568 (2012) (concluding that, even after Freeman, Moore remains 

binding precedent in our Circuit).

We recognize that Johnson also argues that, despite his admitted career 

offender status, he is still eligible for a § 3582(c)(2) reduction because his ultimate

120-month sentence was not “based on” his career offender range of 267 to 327 

months. Johnson calculates what his original base offense level and guidelines 

range would have been, not as a career offender, but under the drug quantity tables 

in § 2D1.1(c). Johnson calculates his base offense level as 30 under the drug 

quantity tables, which, with his acceptance of responsibility reduction and his 

original criminal history category of V, yields an original advisory guidelines 

range of 120 to 150 months. Johnson argues that by granting him two downward 

departures and a downward variance and ultimately sentencing him within that

120-to-150-month range, the sentencing court implicitly found that Johnson was 

not a career offender, and thus he should benefit from Amendment 750.

Johnson’s argument lacks merit for several reasons. First, Johnson’s 

argument ignores his status as a career offender, which was the basis of his 262 to 

327 month advisory guidelines range. The only way Johnson got the 120-month 

sentence was due to downward departures and a variance. Second, and in any 

event, under the commentary to U.S.S.G. § 1B1.10, the “applicable guideline 

range” that must be lowered in order to be eligible for a § 3582(c)(2) reduction is 

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“the guideline range that corresponds to the offense level and criminal history 

category determined . . . before consideration of any departure provision in the 

Guidelines Manual or any variance.” See U.S.S.G. § 1B1.10, cmt. n.1(A) 

(emphasis added); see also 18 U.S.C. § 3582(c)(2) (requiring any reduction to be 

“consistent with applicable policy statements issued by the Sentencing 

Commission”).2

Third, we also reject Johnson’s argument that he falls within any potential 

exception discussed in dicta in Moore.

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 Here, Johnson’s § 4A1.3(b) criminal 

history downward departure was not to his offense level, but to his criminal history 

category. Thus, the possible exception discussed in Moore does not apply to 

Johnson. See Moore, 541 F.3d at 1329-31. In any event, Moore was decided in 

2008, and the guidelines commentary, effective November 1, 2011, makes clear 

that to be eligible for a § 3582(c)(2) reduction, the amendment must lower the 

guidelines range determined before any departure or variance. See U.S.S.G. 

§ 1B1.10, cmt. n.1(A).

 

2

The Sentencing Commission amended the commentary to U.S.S.G. § 1B1.10 in 

Amendment 759, effective November 1, 2011, before Johnson’s § 3582(c)(2) motion was filed in 

December 2011. U.S.S.G. App. C, amend. 759 (Nov. 2011).

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There is a threshold question of whether Moore created any exception to the general rule 

that crack cocaine defendants sentenced as career offenders are ineligible for § 3582(c)(2) 

sentence reductions based on recent amendments to the crack cocaine offense levels in 

§ 2D1.1(c), such as Amendments 706 and 750. Moore simply distinguished two district court 

cases in other Circuits in which career-offender defendants received § 4A1.3 criminal history 

downward departures that directly reduced their offense levels (not their criminal history 

category) and also received § 3582(c)(2) sentence reductions based on Amendment 706. See

Moore, 541 F.3d at 1329-31. 

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In sum, because Johnson’s advisory guidelines range was based on his 

career offender status, Johnson’s sentence was not “based on” a subsequently 

lowered sentencing range, as required by § 3582(c)(2). Accordingly, the district 

court lacked the authority to grant Johnson’s § 3582(c)(2) motion.

AFFIRMED.

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