[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 12

- 12446 Non

- Argument Calendar

________________________ D.C. Docket No. 6:06

- cr - 00178

- GAP

- GJK

- 1 UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

versus LETARIUS R. JOHNSON,

Defendant

- Appellant.

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

________________ ________ (March 13, 2013) Before CARNES , BARKETT and HULL , Circuit Judges. PER CURIAM:

Case: 12-12446 Date Filed: 03/13/2013 Page: 1 of 72 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 qual ify him as a career offender under U.S.S.G. § 4B1.1

. After review, we affirm. 1
I. S ECTION 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

se ntencing 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 sente nce.” 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)

.

Case: 12-12446 Date Filed: 03/13/2013 Page: 2 of 73 § 3582(c)(2) reduction is not authorized i f 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 co caine 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 b ased on amendments to the crack cocaine offense levels in § 2D1.1(c) beca use 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. J OHNSON ’ S O RIGINAL S ENTENCE 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 26 2 to 327 months’ imprisonment. T he district court , however, granted Johnson two downward departures : (1) a five

- offense

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

Case: 12-12446 Date Filed: 03/13/2013 Page: 3 of 74 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 adv isory guidelines range to 140 to 175 months. The district court then granted Johnson a downward variance from th at 140

- to

- 175

- months range and imposed a 120

- month sentence . Johnson did not appeal his 120

- month sentence. III. J OHNSON ’ S § 3582(c)(2) M OTION BASED ON A MENDMENT 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) , t his Court has rejected this argument. See United States v. Lawson , 686 F.3d 1317, 1320

- 21 (11th Cir.), cert. denied , __ U.S.

Case: 12-12446 Date Filed: 03/13/2013 Page: 4 of 75 __, 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 h is 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 woul d 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 histo ry category of V , yield s 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 th at 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 lowe red in order to be eligible for a § 3582(c)(2) reduction is

Case: 12-12446 Date Filed: 03/13/2013 Page: 5 of 76 “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 b y the Sentencing Commission”). 2 Third, we also reject Johnson’s argument that he falls within an y potential exception discussed in dicta in Moore

. 3 Here, Johnson’s § 4A1.3(b) criminal history downward departure w as not to his offense level, but to his cri minal 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 De cember 2011. U.S.S.G. App. C, a mend. 759 (Nov. 2011). 3 There is a threshold question of whether Moore created an y exception to the gene ral 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 distinguish ed 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

.

Case: 12-12446 Date Filed: 03/13/2013 Page: 6 of 77 In s um , because Johnson’s advisory guidelines range was based on his career offender sta tus, 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. Case: 12-12446 Date Filed: 03/13/2013 Page: 7 of 7