[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 12

- 16212 Non

- Argument Calendar

________________________ D.C. Docket No. 5:92

- cr - 00076

- CAR

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus CARLTON BERNARD JOHNSON, a.k.a. Nard, a.k.a. Little Man, a.k.a. Hole in Throat, Defendant

- Appellant.

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

__________________ ______ (March 20, 2014) Before TJOFLAT , JORDAN, and FAY , Circuit Judges.
PER CURIAM:

Case: 12-16212 Date Filed: 03/20/2014 Page: 1 of 52 Carlton Bernard Johnson, a federal prisoner proceeding pro se , appeals the denial of h is motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). He
argues the Fair Sentencing Act of 2010 (“FSA”) , Pub. L. No. 111

- 220, 124 Stat. 2372, required the district court to resentence him to rectify the disparity between powder

- cocaine sentences and his crack

- cocaine sentence . We affirm. We review de novo a district court’s legal concl usions about the Sentencing Guidelines and the scope of its authority under 18 U.S.C. § 3582(c)(2). United
States v. Davis , 587 F.3d 1300, 1303 (11th Cir. 2009). Under § 3582(c)(2), a district court may reduce the prison sentence 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.” 18 U.S.C. § 3582(c)(2). The grounds upon which a district court may reduce a defendant’s sentence pursuant to § 3582(c)(2) are narrow. United States v. Berry , 701 F.3d 374, 376 (11th Cir. 2012). For a defendant to be eligible for this reduction, t he Sentencing Commission must have amended the Sentencing Guidelines, that amendment must have lowered t he defendant’s sentencing range, and the amendment also must be
l isted in U.S.S.G. § 1B1.10(c). 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(1) &
cmt. n.1(A). In evaluating whe ther a reduction is warranted, the district court determine s the G uideline s range that would have been applicable had the relevant

Case: 12-16212 Date Filed: 03/20/2014 Page: 2 of 53 amendment been in effect at the time of the defendant’s sentencing. U.S.S.G. § 1B1.10(b)(1). T he district court can substitute only the relevant amendment in its original G uideline s calculation and must leave all other G uideline s application decisions unaffected. Id. ; United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). Amendment 750 to the Sentencing Guidelines, made retroactive by Amendment 759, lowered the sentencing range applicable to crack

- cocaine crim es by revising the crack

- cocaine quantity tables listed in § 2D 1.1(c). U.S.S.G. App. C, amend . 750, 759. Section 2D1.1(c) now assigns a base offense level of 36 in cases involving at least 2.8 kilograms, but less than 8.4 kilograms, of crack cocaine. U.S.S.G. § 2D1.1(c)(2). It assigns a base offense level of 38, the highest offense level possible, in case s involving 8.4 kilograms or more of crack cocaine.
U.S.S.G. § 2D1.1(c)(1).
A lthough Amendment 750 can be a basis for a sentence reduction under § 3582(c)(2), “the FSA is not a guidelines amendment by the Sentencing Commission, but rather a statutory cha nge by Congress, and thus it does not serve as a basis for a § 3582(c)(2) sentence reduction.” Berry , 701 F.3d at 376

– 77. Moreover, the FSA does not apply retroactively to convicted defendants sentenced
p rior to the Act’s August 3, 2010, date of enactment. Id. at 377.

Case: 12-16212 Date Filed: 03/20/2014 Page: 3 of 54 Johnson relies almost exclusively on the FSA . B ecause the FSA cannot serve as a basis for a § 3582(c)(2) sentence reduction , his argument fails

. See Berry , 701 F.3d at 376

– 77. T o the extent that Johnson relies on Amendment 750, his argument also fails. When Johnson originally was sentenced, he had a total offense level of 41 and a criminal history category of VI , which resulted in a
G uideline s range of 360 months to life. 1 Under § 2D1.1(c)( 1) of the current versio n of the Guidelines, Johnson’s G uideline s range is also 360 months to life. Assuming Johnson possessed at least 2.8 , but not more than 8.4 , kilograms , of crack cocaine , his base offense level would have been 36. 2 U.S.S.G. § 2D1.1( c)(2) (2012). Leaving the other G uideline s application decisions intact , Johnson’s total offense level would have been 37. A total offense level of 37 and criminal history category of VI under t he amended Guidelines yield a sentencing range of 360 months to life. U.S.S.G. Ch. 5, Pt. A, Sentencing Table (2012). Because Amendment 750 does not alter the sentencing range upon which Johnson’s sentence was based, § 3582(c)(2) does not authoriz e a reduction in his sentence.
See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(1).

1 For purposes of § 3582(c )(2) motions, the G uideline s range to which the amendment should be applied is the original range determined before any departures or variances. See U.S.S.G. § 1B1.10, cm t. n.1(A)

. Johnson’s departure for substantial assistance under Fed. R. Crim. P. 35(b) is not relevant to the G uideline s range to which the amendment is applied.

2 Johnson’s plea agreement contained a stipulation of facts, in which he agreed he h ad obtained at least 5 , but not more than 15 , kilograms of crack cocaine. Even giving Jo hnson the benefit of the lower amount of crack cocaine, he is not entitled to a sentence reduction.

Case: 12-16212 Date Filed: 03/20/2014 Page: 4 of 55 O ther claims Johnson asserts, such as whether the district court broke a promise to resentence him after the passage of the FSA, are not proper in a § 3582(c)(2) proceeding , because they do not involve retroactive ame ndments to the Guidelines

. Accordingly, the district court did not err in denying Johnson’s § 3582(c)(2) motion

. AFFIRMED. Case: 12-16212 Date Filed: 03/20/2014 Page: 5 of 5