[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 15

- 12873 Non

- Argument Calendar

________________________ D.C. Docket No. 9:08

- cr - 80094

- DMM

- 3

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus NATHANIEL HARDIMAN, Defendant

- Appellant.

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

________________________ (March 30, 2016) Before TJOFLAT , ROSENBAUM, and JILL PRYOR , Circuit Judges. PER CURIAM:

Case: 15-12873 Date Filed: 03/30/2016 Page: 1 of 112 Nathaniel Hardiman , represented by counsel on appeal, appeals the district

co urt’s denial of his pro se mo tion for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on Amendment 782 to the United States Sentencing Guidelines (“U.S.S.G.”)

. 1 The district court found Hardiman ineligible for § 3582(c)(2) relief because he was sentenced as a career offender, U.S.S.G. § 4B1.1, so Amendment 782 , which lowered the base offense levels for mo st drug offenses under U.S.S.G. § 2D1.1, did not lower the guideline range upon which his sentence was based. On appeal, Hardiman argues that, because he received a downward variance to the low end of the crack

- cocaine guideline range that would have appl ied if he were not a career offender , he is eligible for a sentence reduction based on the Supreme Court’s decision in Freeman v. United States , 564 U.S. ___, 131 S. Ct. 2685 (2011). He contends that Freeman abrogated our decision in United States v. Moore , 541 F.3d 1323 (11th Cir. 2008), in which we concluded that career offenders were not eligible for relief under § 3582(c)(2) based on changes to the crack

- cocaine guidelines. After careful review, we affirm. I

. Hardiman pled guilty to conspiracy to distribute fifty grams or more of crack cocaine. At his sentencing in 2009 , t he district court found that Hardiman had

1 In the underlying motion, Hardiman appears to have moved for relief based on Amendment 750, but the district court construed his request as based on Amendment 782, as the court previously had denied Hardiman relief under Amendment 750. Our analysis is the same regardless of the particular amendment at issue

.

Case: 15-12873 Date Filed: 03/30/2016 Page: 2 of 113 prior felony conviction s that qualified him as a career offender under U.S.S.G. § 4B 1.1. Under the career

- offender guideline range, Hardiman faced 262 to 327 months in prison. Nevertheless, the court found that the career

- offender guideline, while technically applicable, produced an unreasonable sentencing range. The court therefore downwardly varied from that range, pursuant to Book er 2 and 18 U.S.C. § 3553(a), and sentenced Hardiman to 130 months in prison

— equivalent to the low end of the guideline range (130 to 162 months) produced by the crack

cocaine guideline, U.S.S.G. § 2D1.1

. Since 2009, t he Sentencing Commission has twice amended the drug

quantity table in § 2D1.1 to reduce the base offense levels applicable to crack

cocaine offenses. Hardiman first sought a sentence reduction in July 2012 after the Commission issued Amendment 750

. 3 The court found Hardiman ineligible for relief as a career offender and denied the motion. Hardiman next sought a sentence reduction in September 2014, which the district court construed as requesting a reduction under Amendment 782. The court again found Hardiman ineligible and denied the motion. The court explained that Amendment 782 did not apply because, “[a]lthough the Court varied downward from the guidelines range, the Defendant was classified as a career

2 United States v. Booker , 543 U.S. 220, 125 S. Ct. 738 (2005). 3 Hardiman a lso requested relief under the Fair Sentencing Act of 2010 , but this Act cannot serve as a basis for a § 3582(c)(2) s entence reduction and does not apply retroactively. United States v. Berry , 701 F.3d 374, 377

- 78 (11th Cir. 2012).

Case: 15-12873 Date Filed: 03/30/2016 Page: 3 of 114 offender and the Court’s variance does not change the Defendant’ s career offender status.” Doc. 564. Hardiman now appeals. II. We review de novo w h ether a defendant is eligible for a sentence reduction under § 3582(c)(2). See United States v. Davis , 587 F.3d 1300, 1303 (11th Cir. 2009). Section 3582(c)( 2) permits district courts to reduce a defendant’s term of imprisonment in the limited ci rcumstances where the defendant was sentenced “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). A defendant’s eligibility for a sentence reduction is determined by calculating the “amended guideline range that would have been applicable” if the retroactive amendment had been in effect at the defendant’s original sentencing. See U.S.S.G. § 1B1.10(b)( 1). The amended guideline range is determined by substituting only the amended guideline for the one originally used. Id. ; see United States v. Bravo , 203 F.3d 778, 780 (11th Cir. 2000)

. A sentence reduction is not consistent with the policy of the Sente ncing Commission

— and therefore is not authorized under § 3582(c)(2)

— if the retroactive ame ndment “does not have the effect of lowering the defendant’s applicable guideline range .” U.S.S.G. § 1B.10(a)(2)(B); see 18 U.S.C.

Case: 15-12873 Date Filed: 03/30/2016 Page: 4 of 115 § 3582(c)(2) (providing that any sentence reduction must be “ consistent with applicable policy statements issued by the Sentencing Commission. ”)

. The commentary to § 1B1.10 explains that the “applicable guideline range” is “determined before consideration of any departure provision in th e Guidelines Manual or any variance.” U.S.S.G. § 1B1.10 c m t. n.1 (A)

. The Supreme Court has held that a commentary provision “which functions to interpret a guideline or explain how it is to be applied” is binding as long as the commentary does not confli ct with the Constitution, a federal statute, or the guideline at issue. Stinson v. United States , 508 U.S. 36, 42

- 43, 45, 113 S. Ct. 1913, 1917

- 1 9 (1993) (alterations and internal quotation marks omitted). In Moore , we explained that § 3582(c)( 2) authorizes reductions to only those sentences that were “based on” sentencing ranges that were subsequently lowered by a retroactive amendment. Moore , 541 F.3d at 1327 ; s ee id. at 1326 (“W here a retroactively applicable guideline amendment does not alt er the sentencing range upon which a defendant ’s sentence was based, § 3582(c)(2) does not authorize a sentence reduction. ”). B ecause Amendment 706 did not alter the career

- offender offense levels, we concluded that it did not lower the sentencing range u pon which a career offender’s sentence had been based. Id. at 1327. We also noted that the commentary to § 1B1.10(a) “ma[de] clear” that a § 3582(c)(2) reduction was not authorized where an amendment lowered a defendant’s base offense leve l for the

Case: 15-12873 Date Filed: 03/30/2016 Page: 5 of 116 offense of conviction but not the career

- offender sentencing range under which the defendant was sentenced. Id. at 1327

- 28; see also U.S.S.G. § 1B1.10 cmt. n.1(A) (explaining that a reduction under § 3582(c)(2) is not consistent with the policy
statement if the retroactive amendment “is applicable to the defendant but the amendment does not have the effect of lowering the defendant’s applicable guideline range because of the operation of another guide line or statutory provision”). Nevertheless, we distingu ished the facts in Moore from two out

- of

- circuit district court cases in which the sentencing courts, by applying a downward departure under U.S.S.G. § 4A1.3, “ reduced the defendants ’ offense levels to those that would be in effect absent the career offend er guideline. ” Id. at 1229

- 30. Those reduced offense levels were then used to determine the guideline range s under which the defendants were sentenced. Id. Because Amendment 706 lowered the offense levels that were used to determine the applicable guideline ranges, we stated that “a reduction in sentence is within the district court’s discretionary authority under § 3582(c)(2).” Id. at 1330. We found no similar circumstances with respect to the defendants in Moore , because there was no “indication that the court based [the] sentence[s] on the guideline range that would have applied absent the career offender designation.” Id.

Case: 15-12873 Date Filed: 03/30/2016 Page: 6 of 117 In Freeman , the Supreme Court addressed whether defendants who enter into Rule 11(c)(1)(C), Fed. R. Crim. P., plea agreemen ts are eligible for § 3582(c)(2) relief. 131 S. Ct. at 2690. A four

- justice plurality stated that § 3582(c)(2) “ should be available to permit the district court to revisit a prior sentence to what ever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence or to approve the agreement. ” Id. at 2692

- 93. The plurality concluded that the judge’s decision to accept a Rule 11(c)(1)(C) plea “ is likely to be b ased on the Guidelines ; and when it is, the defendant should be eligible to seek § 3582(c)(2) relief. ” Id. at 2695. In a n opinion concurring in the judgment, Justice Sotomayor determined that sentences imposed pursuant to Rule 11(c)(1)(C) plea agreement s , as a general
matter , were not “based on” the guidelines. Id. at 2696

- 97 (Sotomayor, J., concurring in the judgment ). But a particular defendant may be eligible for § 3582(c)(2) relief if the agreement “ expressly uses a Guidelines sentencing range
to e stablish the term of imprisonment, and that range is subsequently lowered by the Commission .” Id. at 2698 (Sotomayor, J., concurring in the judgment). In Lawson , we rejected the argument that Freeman overruled or abrogated our decision in Moore

. United States v. Lawson , 686 F.3d 1317, 1321 (11th Cir. 2012). We explained that neither the plurality opinion nor Justice Sotomayor’s concurrence dealt with the issue presented in Moore

— “defendants who were

Case: 15-12873 Date Filed: 03/30/2016 Page: 7 of 118 assigned a base offense level under one guideline sec tion, but who were ultimately assigned a total offense level and guideline range under § 4B1.1.” Id. Thus, Moore remains binding precedent in this Circuit. Id. at 1321; see also United States v. Tellis , 748 F.3d 1305, 1309

- 10 (11th Cir. 2014) (again rej ecting the argument that Freeman overruled Moore ). Here, the district court properly denied Hardiman’s § 3582(c)(2) motion

. Despite Hardiman’s contention that Moore has been abrogated by Freeman , we have held that Moore continues to be good law in this Circuit. See Lawson , 686 F.3d at 1321. Because Hardiman was found to be a career offender and sentenced under § 4B1.1 , Amendment 782 did not have the effect of lowering the guideline range upon which his sentence was base d. See Moore , 541 F.3d at 1327. A mendment 782 lowered the crack

- cocaine base offense levels in § 2D1.1 but did nothing to the career - offender base offense levels in § 4B1.1. Accordingly, under Moore and Lawson , Amendment 782 did not alter the career - offender guideline range upon which his sentence was based , so a § 3582(c)(2) reduction is not authorized. Acknowledging these general points, Hardiman counters that his sentence in fact was “based on” the crack

- cocaine guideline range because the sentencing court downwardly varied from the career

- offender guideline range to the low end of the

Case: 15-12873 Date Filed: 03/30/2016 Page: 8 of 119 range calculated under § 2D1.1. 4 In similar circumstances, the Sixth Circuit held that a career offender was eligible for § 3582(c)(2) relief when the sente ncing judge varied from the career

- offender guideline range to a range “that would have applied to [the defendant] under the crack cocaine guidelines if he were not a career offender.” United States v. Jackson , 678 F.3d 442, 444

- 45 (6th Cir. 2012). Even our decision in Moore suggested that § 3582(c)(2) relief may not be completely foreclosed to a career offender when there is an “indication that the court based [the] sentence on the guideline range that would have applied absent the career offender designation.” Moore , 541 F.3d at 1330. Nonetheless, commentary to the Sentencing Commission’s policy statement on § 3582(c)(2) sentence reductions , which became effective in November 2011, forecloses Hardiman’ s argument. Under § 3582(c)(2), any senten ce reduction must be “ consistent with applicable policy statements issued by the Sentencing Commission ,” 18 U.S.C. § 3582(c)(2), and a reduction is not consistent with the Commission’s policy statement if the retroactive amendment “does not have the effect of lowering the defendant’s applicable guideline range,” U.S.S.G. § 1B1.10(a)(2)(B). The commentary to § 1B1.10, in turn, defines the “applicable guideline range” as the range “ determined before consideration of . . . any

4 We note that t here is some force to this position because, from a practical standpoint, Hardiman’s sentence was “based on” the crack

- cocaine guideline range , and Hardiman may very well have received a sentence below 130 months of imprisonment had Amendment 782 been in effect at the time of his original sentencing.

Case: 15-12873 Date Filed: 03/30/2016 Page: 9 of 1110 variance

. U.S.S.G. § 1B1.10 cmt . n.1(A). Therefore, Hardiman’s eligibility for a sentence reduction is determined before considering the downward varia nce he received at sentencing. In effect, the fact that Hardiman received a downward variance from the career

- offender guideline range is irrelevant to his eligibility for § 3582(c)(2) relief

. Hardiman asserts without further analysis that the commentary defining “applicable guideline range” is inconsistent with the Supreme Court’s interpretation of § 3582(c)(2) in Freeman

. However, Freeman addressed the question of whether a term of imprisonment was “based on” a sentencing range that has been lowered. See 131 S. Ct. at 2690

- 91. Freeman did not address § 3582(c)(2)’s other explicit requirement that any reduction must be “ consistent with applicable policy statements issued by the Sentencing Commission. ” See 18 U.S.C. § 3582(c)(2). T he relevant commentary to § 1B1.10 explains how to determine when a reduction is consistent with the Sentencing Commission’s policy statement on § 3582(c)(2) reductions

— specifically when an amendment “ lower [s] the defenda nt’s applicable guideline range. ” U.S.S.G. § 1B1.10(a)(2)(B). The commentary does not interpret , and is not plainly inconsistent with, § 3582(c)( 2). Accordingly, we reject Hardiman’s argument on this point.

Case: 15-12873 Date Filed: 03/30/2016 Page: 10 of 1111 III. In sum, the district court properly denied Hardiman’s § 3582(c)(2) motion because he was sentenced as a career offender and Amendment 782 did not lower his applicable guideline range, ev en though he received a downward variance to a term of imprisonment within the range that would have applied if he were not a career offender. AFFIRMED. Case: 15-12873 Date Filed: 03/30/2016 Page: 11 of 11