FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

September 5, 2008

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-11230

________________________

D. C. Docket No. 03-80117-CR-DTKH

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

GARY MOORE, 

a.k.a. Nino, 

Defendant-Appellant. 

________________________

No. 08-11341

________________________

D. C. Docket No. 97-08032-CR-DTKH
2

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

RALPH EDWARD WESTER, 

Defendant-Appellant. 

________________________

No. 08-11484

________________________

D. C. Docket No. 02-80051-CR-DTKH

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

THEODORA LAWTON, 

a.k.a. George, 

a.k.a. Burn, 

a.k.a. Chicken George, 

Defendant-Appellant.

________________________

No. 08-11526

________________________

D. C. Docket No. 97-08056-CR-DTKH
3

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

CLARENCE COLLINS, 

Defendant-Appellant.

________________________

No. 08-13132

________________________

D. C. Docket No. 04-14022-CR-DMM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

KEITH MAURICE MCFADDEN, 

a.k.a. Shine, 

Defendant-Appellant. 

 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(September 5, 2008)
4

Before WILSON, PRYOR and COX, Circuit Judges.

WILSON, Circuit Judge:

In this consolidated appeal, Gary Moore, Ralph Edward Wester, Theodora

Lawton, Clarence Collins, and Keith Maurice McFadden (“defendants”) appeal

separate district court decisions denying their motions for reduced sentences under

18 U.S.C. § 3582(c)(2). The defendants’ motions were all based on Amendment

706 to the Sentencing Guidelines, which, together with Amendment 713,

retroactively reduced the base offense levels applicable to crack cocaine offenses. 

The district courts denied their motions on the ground that, because the defendants

were sentenced as career offenders under U.S.S.G. § 4B1.1, Amendment 706 did

not have the effect of lowering their applicable guideline ranges. We affirm.

I. BACKGROUND

Defendants are federal prisoners convicted of unrelated crack cocaine

offenses. In each case, the defendant’s base offense level was calculated pursuant

to U.S.S.G. § 2D1.1, which considers the quantity of drugs involved in the

offense. However, in each case, the defendant was classified as a career offender

under § 4B1.1(a) because the defendant was at least eighteen years old at the time

of the instant offense, the instant offense was a felony drug offense, and the

defendant had at least two prior felony convictions of either a crime of violence or
5

a drug offense. As a career offender, each defendant was assigned an offense level

of 37 because the instant offense had a maximum statutory penalty of life

imprisonment. See U.S.S.G. § 4B1.1(b). Four of the five defendants received a

three-level reduction for acceptance of responsibility, resulting in a total adjusted

offense level of 34. All defendants automatically received a criminal history

category of VI under § 4B1.1(b) because of their career offender designations.

The applicable guideline range in each case was determined according to

the Sentencing Table in Chapter 5, Part A of the Guidelines. For the defendants

receiving the three-level reduction, the applicable range was 262 to 327 months’

imprisonment. For the fifth defendant (Wester) the applicable range was 360

months to life imprisonment. Collins, Wester, and McFadden each received a

sentence within the applicable guideline range.

In the cases of Lawton and Moore, the court imposed a sentence below the

applicable range. As to Lawton, the court departed downward to a range of 168 to

210 months’ imprisonment after finding that Lawton suffered from diminished

capacity. See U.S.S.G. § 5K2.13. The court sentenced Lawton to a term of 180

months’ imprisonment. In Moore’s case, the government filed a motion pursuant

to § 5K.1 and 18 U.S.C. § 3555(a) asking the court to depart from the calculated

guideline range because of Moore’s substantial assistance to the government. The
6

court granted the motion and imposed a sentence of 132 months’ imprisonment.

On November 1, 2007, the Sentencing Commission promulgated

Amendment 706, which amended the Drug Quantity Table in U.S.S.G. § 2D1.1(c). 

U.S.S.G. App. C, Amend. 706 (2007). The effect of Amendment 706 is to provide

a two-level reduction in base offense levels for crack cocaine offenses. See id.

The Commission made this amendment retroactively applicable, effective as of

March 3, 2008. See U.S.S.G. App. C, Amend. 713 (Supp. May 1, 2008) (listing

Amendment 706 under U.S.S.G. § 1B1.10(c) as a retroactively applicable

amendment).

Following the issuance of Amendment 706, each defendant filed a postsentencing motion for a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2). In

the cases of Moore, Wester, Lawton, and Collins, the district court issued virtually

identical orders denying the motions. In each case, the court found that a

reduction in sentence was not authorized by § 3582(c)(2) because Amendment 706

did not affect the defendant’s status as a career offender under § 4B1.1, and

therefore did not lower the applicable guideline range. The court in McFadden’s

case denied his motion on the same grounds and later denied reconsideration. 

Following the defendants’ timely appeals, we consolidated the cases into the

present appeal.
 McFadden filed his motion after March 3, 2008, and therefore the jurisdictional issue is 1

not implicated in his case.

7

II. STANDARD OF REVIEW

In a § 3582(c)(2) proceeding, “we review de novo the district court’s legal

conclusions regarding the scope of its authority under the Sentencing Guidelines.” 

United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002) (per curiam). “We

review de novo questions of statutory interpretation.” United States v. Maupin,

520 F.3d 1304, 1306 (11th Cir. 2008) (per curiam).

III. DISCUSSION

A. Jurisdiction

Before considering the merits, we briefly address an issue pertaining to

jurisdiction. See United States v. Cartwright, 413 F.3d 1295, 1299 (11th Cir.

2005). At oral argument, we inquired as to whether the district court lacked

subject matter jurisdiction over the motions filed by Moore, Wester, Lawton, and

Collins, given that those motions were filed before March 3, 2008, the date

Amendment 706 became retroactively applicable.1

We have not previously addressed whether the premature filing of a §

3582(c)(2) motion deprives the district court—and therefore this court—of subject

matter jurisdiction over the motion. Recently, the Third Circuit suggested that
See also United States v. Tensley, No. 07-15649, 270 F. App’x 758, 759 (11th Cir. 2

2008) (unpublished opinion) (affirming denial of § 3582(c)(2) motion based on Amendment 706

because defendant filed motion before March 3, 2008).

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before March 3, 2008, district courts lacked authority under § 3582(c)(2) to apply

Amendment 706 retroactively. See United States v. Wise, 515 F.3d 207, 220-21

(3d Cir. 2008) (stating that defendant could file a § 3582(c)(2) motion based on

Amendment 706 only after it became retroactive on March 3, 2008). However,

2

Wise does not indicate whether the courts lacked subject matter jurisdiction before

that date. At least one other circuit has concluded that not all errors under §

3582(c)(2) are jurisdictional in nature. See United States v. Lawrence, 535 F.3d

631, 638 (7th Cir. 2008). 

We leave for another day the question whether a district court has subject

matter jurisdiction over a § 3582(c)(2) motion before the relevant amendment

becomes retroactive. In the present cases, any jurisdictional defects that may have

existed were cured by the fact that the district court ruled on the defendants’

motions after March 3, 2008. This conclusion is supported by language in the

statute authorizing the district court to reduce a defendant’s sentence “on its own

motion.” 18 U.S.C. § 3582(c)(2). If, after March 3, 2008, a district court may sua

sponte reduce a defendant’s sentence, it would be anomalous to hold that the court

lacked jurisdiction to do so in response to a defendant’s motion, simply because
9

the motion was filed before March 3. We thus conclude that there was no

jurisdictional bar to the district court’s consideration of the § 3582(c)(2) motions

in these cases.

B. District Court’s Authority Under § 3582(c)(2)

Section 3582(c) provides in relevant part:

The court may not modify a term of imprisonment once it has been

imposed except that—

. . .

(2) in the case 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 pursuant to 28 U.S.C. 994(o),

upon motion of the defendant or the Director of the Bureau of

Prisons, or on its own motion, the court may reduce the term of

imprisonment, after considering the factors set forth in section

3553(a) to the extent that they are applicable, if such a reduction is

consistent with applicable policy statements issued by the Sentencing

Commission.

18 U.S.C. § 3582(c).

Thus, the question before us is whether the defendants’ sentences were

“based on a sentencing range that has subsequently been lowered.” The

defendants argue that this language should be read to apply in cases where a

defendant’s base offense level has been altered by a retroactively applicable

guideline amendment. In such cases, they argue, the district court must recalculate

the applicable guideline range and then determine, in light of the 18 U.S.C. §
10

3553(a) factors, whether a reduction is warranted.

The government responds that the defendants are ineligible for relief

because they were sentenced as career offenders, and therefore Amendment 706

has no effect on their guideline ranges. While acknowledging that the amendment

lowers the defendants’ base offense levels, the government notes that their final

offense levels were determined by § 4B1.1, the career offender guideline. Because

Amendment 706 did not alter the sentencing ranges for career offenders, the

government contends that the district courts lacked authority to reduce the

defendants’ sentences.

The plain language of § 3582(c)(2) favors the government’s interpretation. 

By its terms, the statute applies to a defendant whose sentence was “based on” a

subsequently-lowered “sentencing range.” Here, the defendants’ sentences were

based on the guideline ranges applicable to career offenders under § 4B1.1. The

defendants’ base offense levels under § 2D1.1 played no role in the calculation of

these ranges. Thus, Amendment 706’s effect on the defendants’ base offense

levels would not lower the sentencing ranges upon which their sentences were

based. 

Further supporting the government’s position is U.S.S.G. § 1B1.10, the

recently-revised policy statement addressing reductions in sentences as a result of
11

amended guideline ranges. This statement provides in relevant part:

(2) Exclusions.—A reduction in the defendant’s term of

imprisonment is not consistent with this policy statement and

therefore is not authorized under 18 U.S.C. § 3582(c)(2) if—

. . .

(B) an amendment listed in subsection (b) does not have the effect of

lowering the defendant’s applicable guideline range.

U.S.S.G. § 1B1.10(a) (made effective on March 3, 2008, by Amendment 712).

An application note to § 1B1.10(a) makes clear that it was intended to apply

in circumstances such as these. Application Note 1(A) provides that a reduction

under § 3582(c)(2) is not authorized where “the 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

guideline or statutory provision (e.g., a statutory mandatory minimum term of

imprisonment).” U.S.S.G. § 1B1.10, comment. (n.1(A)) (emphasis added). Here,

Amendment 706 is “applicable to the defendant[s]” in that it reduces their base

offense levels, but it does not have the effect of lowering their applicable guideline

ranges because of the application of the career offender guideline. Thus, the

Sentencing Commission contemplated that inmates in the defendants’ position

would not be eligible for relief under § 3582(c)(2).

We note further that the government’s construction of the statute has been
 We have applied the same reasoning in unpublished decisions involving other guideline 3

amendments. See, e.g., United States v. Lee (No. 07-11877, Feb. 26, 2008, 11th Cir.)

(unpublished opinion) (affirming denial of § 3582(c)(2) motion because defendant was sentenced

as career offender, and therefore guideline amendment was not implicated); United States v.

Hankerson (No. 06-13228, Mar. 19, 2007, 11th Cir.) (unpublished opinion) (same); United

States v. Atwell (No. 05-10064, Mar. 6, 2006, 11th Cir.) (unpublished opinion) (same). Although

these decisions are not binding upon us, they provide additional persuasive authority in support

of the government’s position.

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adopted by at least one of our sister circuits. In United States v. Thomas, 524 F.3d

889 (8th Cir. 2008) (per curiam), the court affirmed the denial of a § 3582(c)(2)

motion based on Amendment 706 where the defendant was sentenced as a career

offender under § 4B1.1. The court explained:

Mr. Thomas was sentenced as a career offender, and his sentencing

range was therefore determined by § 4B1.1, not by § 2D1.1.

Although the Sentencing Commission lowered the offense levels in

USSG § 2D1.1(c) related to crack-cocaine drug quantities, it did not

lower the sentencing range for career offenders under USSG § 4B1.1,

which is what set Thomas’s sentencing range. Mr. Thomas has

therefore not met the eligibility requirements for a reduction in his

sentence. Application of Amendment 706 would not lower Thomas’s

applicable guideline range.

Id. at 890 (citation omitted); see also United States v. Tingle, 524 F.3d 839, 840

(8th Cir. 2008) (per curiam) (same).3

The defendants argue that this authority is inconsistent with our decisions in

United States v. Bravo, 203 F.3d 778 (11th Cir. 2000), and United States v. Brown,

104 F.3d 1254 (11th Cir. 1997) (per curiam). In Bravo, the district court granted a

reduction under § 3582(c)(2) based on a retroactively applicable guideline
13

amendment. 203 F.3d at 780. The issue before us was whether the court was

required to depart below the revised guideline range. Id. In affirming the district

court, we stated that a court applying an amendment under § 3582(c) “must

recalculate the sentence under the amended guidelines, first determining a new

base level by substituting the amended guideline range for the originally applied

guidelines range, and then using that new base level to determine what ultimate

sentence it would have imposed.” Id. We then instructed courts to determine, in

light of the § 3553(a) factors, whether to impose the newly calculated sentence or

to retain the original sentence. Id. at 781. Defendants cite this language for the

proposition that a district court is authorized to grant a reduction under §

3582(c)(2) where a retroactive amendment reduces the defendant’s base offense

level. However, Bravo is inapposite because the defendant in that case was not

sentenced as a career offender. Therefore, the amendment at issue actually

affected the guideline range applicable to him. Bravo thus does not control the

present case, where the relevant amendment would have no effect on the

defendants’ guideline ranges.

In Brown, the defendant argued that the district court did not provide a

sufficient analysis of the § 3553(a) factors in declining to exercise its discretion to

reduce his sentence under § 3582(c)(2). 104 F.3d at 1255. Defendants rely on
14

language from the case in which we stated that a retroactive amendment reducing

the defendant’s base offense level would authorize the district court to reduce his

sentence. See id. (“As Brown’s base offense level would have been lower had he

been sentenced after the effective date of Amendment 505, § 1B1.10 of the

Sentencing Guidelines authorized the district court to reduce his sentence.”).

Again, however, this language does not control the present appeals because, as in

Bravo, there is no indication that the defendant was sentenced as a career offender.

Moreover, the issue in Brown was whether the district court abused its discretion

by failing to explain its reasons for denying the defendant’s § 3582(c)(2) motion. 

Id. at 1255. Thus, the issue of the court’s initial authority to act under §

3582(c)(2) was not before us.

Defendants Moore and Lawton argue that they are eligible for reductions

because they received downward departures, and thus were not sentenced within

the career offender guideline ranges. In support, they rely on a recent decision

from the District of Columbia district court, United States v. Ragland, Criminal

No. 98-0196-01, __ F. Supp. 2d __, 2008 WL 2938662 (D.D.C. July 31, 2008). 

The defendant in Ragland was a career offender within the meaning of § 4B1.1. 

Id. at *1. However, the sentencing court determined that treating the defendant as

such would overstate the seriousness of his criminal history and his likelihood of
15

recidivism. Id. Therefore, pursuant to U.S.S.G. § 4A1.3, the court departed

downward from the career offender range and sentenced the defendant within the

otherwise applicable guideline range. Id. Subsequently, the defendant filed a §

3582(c)(2) motion based on Amendment 706. The government neither opposed a

reduction in sentence nor argued that the defendant was subject to the career

offender guideline range. Id.

A similar situation was presented in United States v. Poindexter, 550 F.

Supp. 2d 578 (E.D. Pa. 2008). As in Ragland, the district court in Poindexter

found that the career offender guideline overrepresented the defendant’s total

offense level. Id. at 579. The court thus departed downward pursuant to § 4A1.3

and assigned the offense level that would have applied absent the career offender

designation. Id. at 580-81. The court then sentenced the defendant within the

resulting guideline range. Id. at 579. Following the defendant’s § 3582(c)(2)

motion, the court held that the defendant was eligible for a reduction based on

Amendment 706. Id. at 582. The court determined that § 2D1.1 governed the

defendant’s sentence because that guideline provided the basis for the selection of

the defendant’s offense level. Id. at 581. Because the defendant’s sentence was

based on a guideline that had been revised, the court concluded that relief under §

3582(c)(2) was permitted. Id. at 582.
16

The circumstances in Moore’s and Lawton’s cases differ from those in

Ragland and Poindexter. In those earlier decisions, the defendants received

departures pursuant to § 4A1.3, which authorizes a departure where the

seriousness of the defendant’s criminal history would otherwise be substantially

overrepresented. Based on that guideline, the courts reduced the defendants’

offense levels to those that would be in effect absent the career offender guideline. 

Those offense levels—which were determined by the Drug Quantity Table in §

2D1.1(c)—were applied together with the defendants’ criminal history categories

to determine the applicable guideline ranges. Thus, the changes to the Drug

Quantity Table effected by Amendment 706 lowered the sentencing ranges upon

which Ragland’s and Poindexter’s sentences were based. In such circumstances, a

reduction in sentence is within the district court’s discretionary authority under §

3582(c)(2).

Although Moore and Lawton also received downward departures, their

sentences were determined by a different process. In Moore’s case, the probation

officer assigned Moore a total offense level of 34 and a criminal history category

of VI following the application of the career offender guideline. These

assignments yielded a guideline range of 262 to 327 months’ imprisonment. The

government filed a downward departure motion pursuant to § 5K1.1 and 18 U.S.C.
17

§ 3553(a) based on Moore’s substantial assistance, and the court imposed a

sentence of 132 months’ imprisonment. In the “Statement of Reasons” completed

in connection with sentencing, the court indicated that the departure was

predicated on the government’s § 5K1.1 motion. The court did not find that the

seriousness of Moore’s criminal history would be overrepresented by application

of § 4B1.1. Nor is there any indication that the court based Moore’s sentence on

the guideline range that would have applied absent the career offender

designation. Thus, in contrast to Ragland and Poindexter, there is no basis for

concluding that the reduction of Moore’s base offense level lowered the

sentencing range relied upon by the district court in determining his sentence.

In Lawton’s case, the probation officer likewise assigned a total offense

level of 34 and a criminal history category of VI. On February 5, 2004, Lawton

appeared for sentencing and sought a downward departure based on her

diminished capacity. Judge Hurley found that Lawton did suffer from diminished

capacity and departed downward to a guideline range of 168 to 210 months. The

transcript of the hearing indicates that Judge Hurley arrived at this range by

departing downward by a total of four offense levels. Judge Hurley then imposed

a sentence of 180 months. Thus, as in Moore’s case, the district court did not find

that a career offender designation was unwarranted as to Lawton. Nor did the
18

court calculate Lawton’s sentencing range by applying her otherwise applicable

offense level and criminal history category. Accordingly, the range upon which

Lawton’s sentence was based is unaffected by the change in her base offense level.

IV. CONCLUSION

In light of the foregoing, we conclude that the district courts properly

determined that they lacked authority under § 3582(c)(2) to grant the requested

sentence reductions in these cases. Where 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. Here, although Amendment 706 would reduce

the base offense levels applicable to the defendants, it would not affect their

guideline ranges because they were sentenced as career offenders under § 4B1.1. 

Accordingly, we affirm the denials of the defendants’ motions.

AFFIRMED.