United States Court of Appeals

For the Eighth Circuit

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No. 12-1936

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Lawrence Wesley Jenkins, Sr.

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the District of Nebraska - Lincoln

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 Submitted: November 12, 2012

Filed: November 29, 2012

[UNPUBLISHED]

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Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Lawrence Jenkins appeals the district court's denial of his motion for a

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reduction in sentence under 18 U.S.C. § 3582(c)(2). We affirm. 

The HonorableWarren K. Urbom, United States DistrictJudge for the District 1

of Nebraska.
Jenkins pled guilty to possession with intent to distribute 50 grams or more of

crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1). The presentence

investigation report (PSR) calculated a base offense level of 30 based on the amount

of crack cocaine attributed to him, U.S.S.G. § 2D1.1, and categorized him as a career

offender based on prior felony convictions. Id. § 4B1.1. Since his offense level from

the career offender table was higher than his level from the drug quantity table, the

PSR applied the level from the career offender table. Id. § 4B1.1(b)(C). After

subtracting three levels for acceptance of responsibility, the PSR determined his

guideline range to be 262 to 327 months. The district court adopted the guideline

calculation in the PSR and then departed downward based on Jenkins's substantial

assistance and background and sentenced Jenkins to 188 months.

In January 2012 Jenkins moved for a sentence reduction under 18 U.S.C.

§ 3582(c)(2) after Amendment 750 to the Sentencing Guidelines reduced offense

levels listed in § 2D1.1 for certain crack cocaine offenses. The district court denied

the motion after concluding that Amendment 750 did not affect Jenkins's sentence as

a career offender. Jenkins argues that the district court erred in denying his motion

because his sentence was "influenced" by the crack cocaine guidelines and the district

court had departed downward from the career offender influenced guideline

calculation when sentencing him, citing Freeman v. United States, 131 S. Ct. 2685,

2695 (2011), and United States v. Rivera, 662 F.3d 166,172–84 (2d Cir. 2011).

We review de novo whether the district court had authority to reduce Jenkins's

sentence. United States v. Washington, 618 F.3d 869, 872 (8th Cir. 2010). In United

States v. Harris, 688 F.3d 950, 955 (8th Cir. 2012), we concluded that a defendant

sentenced under the career offender guidelines was not eligible for a sentence

reduction under § 3582(c)(2) based on Amendment 750. Harris had pled guilty to

distributing drugs, had been sentenced based on the career offender guidelines, and

had received a reduction for acceptance of responsibility as well as other departures. 

Id. at 951–52. We concluded that he was not eligible for a sentence reduction

because his sentence was not "based on the crack-cocaine guidelines but, rather, on

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the applicable career-offender range." Id. at 953. We also concluded that neither

Freeman, 131 S. Ct. at 2699–700, nor Rivera, 662 F.3d at 175, allowed him to seek

a sentence reduction because his sentence had been based on the career offender

range. Harris, 688 F.3d at 955; see also U.S.S.G. § 1B1.10 cmt. n.1(A). The Seventh

Circuit has also agreed that "Freeman has nothing to do with how retroactive

amendments affect career offenders." United States v. Bonds, 468 F. App'x 620, 620

(7th Cir. 2012). 

We conclude that Jenkins is not entitled to a sentence reduction

under § 3582(c)(2). As in Harris, Jenkins'ssentence was based on the career offender

guidelines, he received a sentence reduction for acceptance of responsibility, and he

was given further reductions to his sentence by the district court. Amendment 750

retroactively reduced sentencing guideline ranges for certain crack cocaine offenses,

but it did not affect guidelines related to career offenders. See Harris, 688 F.3d at

955. As we concluded in Harris, neither Freeman nor Rivera are applicable because

Jenkins was sentenced under the career offender guidelines.

A reduction to Jenkins's sentence also is contrary to U.S.S.G. § 1B1.10 which

permits a reduction if a retroactive amendment has the effect of lowering the

defendant's applicable guideline range. In November 2011 commentary to § 1B1.10

was amended to clarify that the "applicable guideline range" that must be lowered for

a defendant to be eligible for a sentence reduction isthe range relied on by the district

court "before consideration of any departure provision . . . or any variance." Id. at

cmt. n.1(A). Jenkins's "applicable guideline range" was based on the career offender

guideline under § 4B1.1 before any departures and that guideline was not modified

by Amendment 750. Jenkins therefore is not eligible to seek a sentence reduction.

The district court's decision is affirmed.

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