[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 12

- 13128 Non

- Argument Calendar

________________________ D.C. Docket No. 0:91

- cr - 06032

- DLG

- 1 UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

versus ROMAIN DANIEL,

Defendant

- Appellant.

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

________________________ (January 10, 2013) Before T JOFLAT , WILSON and PRYOR , Circuit Judges. PER CURIAM: Romain Daniel , pro se , appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction pursuant to Amendment 750 to the

Case: 12-13128 Date Filed: 01/10/2013 Page: 1 of 122 Sentencing Guidelines, which lowered the base offense levels applicable to crack cocaine offenses under U.S.S.G. § 2D1.1. See U.S.S.G. App. C, amend. 750 (Nov. 2011). On appeal, Daniel argues that the Fair Sentencing Act of 2010 (FSA) and Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348 (2000), are retroactively applicable and, as applied to him, would resul t in a lower statutory maximum
sentence . This, he argues, would subsequently lower his G uideline range as a

career offender. Daniel specifically contends that the sentencin g court must first calculate his base offense level on the applicable drug quantity before it may consider his career

- offender status, and that, based on Amendment 750, his initial base offense level under U.S.S.G. § 2D1 .1 would be reduced, resulting in a lower G uideline range. Daniel also argues that the district court abused its discretion by failing to grant a hearin g under U.S.S.G. § 6A1.3 or Federal Rule of Criminal Procedure 32 to determine whether his sentence exceeded the statutory maximum. Upon review of the record and consideration of the parties’ briefs, we affirm. I. BACKGROUND In 1991, Daniel ple a d ed guilty to one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count One) , and one count of possession of a firearm during and in relation to a drug

- trafficking offense, in violation of 18 U.S.C. § 924(c) (Count Three). The presentence

Case: 12-13128 Date Filed: 01/10/2013 Page: 2 of 123 investigation report (PSI) calculated Dani e l’ s base offense level at three , pursuant to U.S. S.G. § 2D1.1(c)(5), because the offense involved at least 150 grams, but less than 500 grams, of cocaine base. Daniel was h eld accountable for 198.2 grams of cocaine base. Daniel also qualified as a career offender pursuant to U.S.S.G. § 4B1.1 b ecause he was at least 18 years old at the time of the instant offense, the instant offense was a controlled

- substance offense, and he had at least two prior felony convictions for controlled

- substance offenses. Be ca use the statutory

maximum sentence was life imprisonment, the offense level was 37 p ursuant to § 4B1.1

. Daniel received a two

- level reduction for acceptance of responsibility, resulting in a total offense level of 35. Based on this total offense level of 35 and a criminal hi story category of VI, Daniel’s G uideline range was 292 to 365 months’ im prisonment. Daniel was sentenced to 292 months’ imprisonment as to Count One, and 60 months’ imprisonment as to Count Three, with the sentences to run consecutively

. In 2010, t he FSA raised the drug quantity thresholds of crack cocaine required to trigger the mandatory minimum imprisonment terms. Pub. L. No. 111

- 220 § 2(a)(1), 124 Stat. 2372 (2010); U.S.S.G. App. C, amend. 750

. In April 2012, Daniel filed the instant § 3582(c)(2) motion asserting that the district court had

Case: 12-13128 Date Filed: 01/10/2013 Page: 3 of 124 authority to reduce his sentence based on the Sentencing Commission’ s retroactive Amendment 750 . He initially arg ued that he was not foreclosed from a sentence reduction based on the fact that he was sentenced as a career offender because that would be inconsistent with United States v. Bravo , 203 F.3d 778 (11th Cir. 2000), and U.S.S.G. § 1B1.10. Daniel further argued that the court committed plain error by imposing a sentence that exceeded the 240

- month statutory maximum, in violation of Apprendi

. D aniel also requested a hearing pursuant to U.S.S.G. § 6A1.3 because the drug quantity was not charged in the i ndictment and his sentence was based upon the applicable statutory maximum of life imprisonment in § 841(b)(1)(A), and not the 240

- month statutory maximum in § 841(b)(1)(C) that applied where a conviction involved an undisclosed drug quantit y. The district court denied Daniel’s motion , holding that Amendment 750 did not alter the sentencing range for ca reer offenders such as Daniel. Daniel timely moved for reconsideration and filed a notice of appeal. In his motion for reconsiderat ion, Daniel argued that the district court abused its discretion by not granting an evidentiary hearing under § 6A1.3 to resolve the legal question of whether his offense level should have been 34 based on a statutory maximum of 20 years’ imprisonment. Th e district court denied the motion for reconsideration without comment.

Case: 12-13128 Date Filed: 01/10/2013 Page: 4 of 125 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. Moore , 541 F.3d 1323, 1326 (11th Cir. 2008). A district court’s denial of an evidentiary hearing is reviewed for an abuse of discretion. United States v. Hill , 643 F.3d 807, 874 (11th Cir. 2011) (citation omitted). A district court abus es its discretion in a § 3582(c)(2) proceeding if it fails to apply the proper legal standard or follow proper procedures in making its determination. United States v. Jules , 595 F.3d 1239, 1241

– 42 (11th Cir. 2010). III. ANALYSIS A. Amendment 750 Sentence Re duction Amendment 750 to the Sentencing Guidelines, made retroactively applicable on November 1, 2011 , lowered the base offense levels applicable to crack cocaine offenses under U.S.S.G. § 2D1.1, pursuant to the FSA. See U.S.S.G. App. C, amend. 750. As a result of those amendments, § 2D1.1(c) now assigns a base offense level of 30 in cases involving at least 196 grams, but less than 280 grams, of cocain e base. U.S.S.G. § 2D1.1(c)(5). Generally, in considering a motion for a sentence reduction, the distr ict court
must engage in a two

- part analysis. Bravo , 203 F.3d at 780. First, the court must

Case: 12-13128 Date Filed: 01/10/2013 Page: 5 of 126 recalculate the defendant’s sentence “by substituting the amended guideline range for the originally applied guideline range, and then using that new base level to determine what ultimate sentence it would have imposed.” Id. Only the amended G uideline is ch anged, and all other G uideline application decisions made during the original sentencing should remain intact durin g this step. Id. Second, the court
must decide whether, in its discretion, it will impose the newly calculated sentence or retain the original sentence. Id. at 781. The court should make this determination in light of the 18 U.S.C. § 3553(a) factors. Id. A sentencing adjustment pursuant to § 3582(c)(2) is not a de novo resentencing. Id. Wh ere a retroactively applicable G uideline amendment reduces a defendant’s base offense level, but does not alter the sentencing range upon which his sentence was ba sed, the district court is not authorized to grant a sentence reduc tion pursuant to § 3582(c)(2). Moore , 541 F.3d at 1330. This includes the situation in which a retroactive amendment of § 2D1.1(c) would result in a lower base offense level, but the defe ndant was sentenced as a career offender. See id

. at 1326

– 30 (holding that a defendant whose original sentence was based upon the

career - offender G uideline, and not § 2D1.1, could not receive a sentence reduction based on Amendment 706 , because it did not have the eff ect of lowering the applicable G uideline range). In Moore , this court noted that we undertake a two

Case: 12-13128 Date Filed: 01/10/2013 Page: 6 of 127 step analysis in applying an amendment under § 3582(c)(2), but we nonetheless stated that “ Bravo is inapposite because the defendant in that case was not sentenced as a career offender.” Id. at 1328. Therefore, Bravo did not control in Moore , where the relevant amendment would hav e no effect on the defendants’ G uideline ranges due to their status es as career offenders. Id. at 1328

– 29. We recently addressed whether the FSA could serve as the basis for a § 3582(c)(2) motion in United States v. Berry , No. 12

- 11150, slip op. at 4 (11th Cir. Nov. 14, 2012) . Berry moved for a sentence reduction based o n Amendment 750. Id. at 1

– 2. We noted that Ber ry’s offense level and Guidelines range were based on his status as a career offender under § 4B1.1. Id. at 3. More importantly, Berry had two prior felony drug convictions and was subject t o a statutory ma ndatory minimum life sentence under § 841(b)(1)(A), su ch that his G uideline range became life imprisonment. Id. at 3

– 4. Accordingly, Amendmen t 750 had no effect on Berry’s G uideline range and the district court lacked authority to grant his motion. Id. at 4. Berry also argued that he was eligible for a sentence reduction based on the FSA, which became effective on August 3, 2010. Id. We stated that “[t]he problem for Berry is the FSA is not a guidelines amendment by the Sentencing Commission, but rath er a statutory

Case: 12-13128 Date Filed: 01/10/2013 Page: 7 of 128 change by Congress, and thus it does not serve as a basis for a § 3582(c)(2) sentence reduction in Berry’s case.” Id. Even assuming, arguendo , that Berry could have brought his FSA claim in a § 3582(c)(2) motion, we stated that the claim would still fail because Berry was sentenced in 2002, and Dorsey v. United States , 132 S. Ct. 2321 (2012) did not suggest that the FSA applied retroactively to defendants who were sentenced before the FSA’s effective date. Id. at 4

– 7. Instead, Dorsey held only that the FSA’s new lower mandatory minimums applied “to the post

- Act sentencing of pre

Act offenders.” Id. at 6

– 7 (emphasis in original). We also noted that, a fter the FSA, a defend ant with one or more prior convictions for felony drug offenses is subject to a mandatory minimum of 10 years’ imprisonment and a statutory maximum of life imprisonment if the offense involved 28 grams or more of crack cocaine. Id. at 6 n.3. Even if Berr y were resentenced under the FSA, his statutory maximum would remain life imprisonment, and hi s offense level and applicable G uideline range under § 4B1.1 would remain the same. Id. Finally, i n Apprendi , the Supreme Court held that , “[o]ther than the fac t of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S. Ct. at 2362

– 63. We have held, in the

Case: 12-13128 Date Filed: 01/10/2013 Page: 8 of 129 context of c ollateral review, that Apprendi is not retroactively applicable. McCoy v. United States , 266 F. 3d 1245, 1258 (11th Cir. 2001). Here, the district court did not err in denying Daniel’s § 3582(c)(2) motion to reduce his sentence. Amendm ent 750 would not affect Daniel ’s G uideline range because of his career

- offender status. Moore , 541 F.3d at 1328

– 29. Although Amendment 750 would have reduced his initial base offense level under § 2D1.1(c), the court ultimately sentenced him as a career offender, pursuant to § 4B1.1. Because the career

- offender Guideline drove the court’s sentencing calculations, the application of Amendment 750, which affects only § 2D1.1, would not lower Daniel’s applicable Guideline range. U.S.S.G. App. C,

ame nd. 750. Thus, a reduction of his sentence would be contrary to the Sentencing Commission’s policy statement, and is not authorized by § 3582(c)(2). See Moore , 541 F.3d at 1326

– 30 ; U.S.S.G. § 1B1.10(a)(2)(B). Therefore , despite Daniel ’s argument that th e court was required to conduct a two

- step analysis under Bravo , Bravo does not control this case

. See 203 F.3d at 780. Daniel’s argument that the FSA entitles him to a sentence reduction also fails. See Berry , No. 12

- 11150, slip op. at 4. Like Berry , even assuming arguendo , that Daniel could bring his FSA claim in a § 3582(c)(2) motion, that claim would still fail because Dan iel was sentenced in 1991, and the FSA does not

Case: 12-13128 Date Filed: 01/10/2013 Page: 9 of 1210 apply retroactively to defendants who were sentenced before August 3, 2010. Id

. at 4

– 7 (noting Dorsey ’s holding that the FSA applies to pre

- Act offenders who are sentenced after the FSA’s effective date). Also, like Berry , even if Daniel was entitled to be resentenced under the FSA based on the drug quantity of 198.2 grams, the sta tutory maximum sentence would remain life imprisonment, and his

career - offender offense level and applicable Guideline range under § 4B1.1 would remain the same. 21 U.S.C. § 841(b)(1)(B); Berry , No. 12

- 11150, slip op. at 6 n.3. Fi nally, Daniel’s argument that Apprendi reduces the applicable statutory maximum from lif e imprisonment to 20 years because the drug quantity wa s not charged in the indictment is misguided. Apprendi does not concern the application of a r etroactive G uideline amendment and does not apply in § 3582(c)(2) proceedings, because in such proceedings district courts may only s ubstitute the amended Guideline, leaving all other sentencing decisions intact. See Bravo , 203 F.3d at 780

– 81. Moreover, Daniel was s entenced before the Supreme Court’s decision in Apprendi , and this court has held that Apprendi is not retroactively applicable in the context of a collateral review proceeding. See McCoy , 266 F.3d
at 1258. Accordingly, the district court did not err in denying Daniel’s § 3582(c)(2) motion to reduce his sentence. B. Denial of an Evidentiary Hearing

Case: 12-13128 Date Filed: 01/10/2013 Page: 10 of 1211 Under U.S.S.G. § 6A1.3(a), “[w]hen any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor.” Disputed sentencing factors should be resolved at a hear ing held in accordance with Federal Rule of Criminal Procedure 32. U.S.S.G. § 6A1.3(b). In Jules , the probation office provided the district court with a memorandum, which was not docketed or provided to the parties, and stated that the defendant had been sanctioned in prison three times for marijuana possession and one time for being in an unauthorized area. 595 F.3d at 1241. The court acknowledged Jules’s eligibility for a sentence reduction, but relied upon those sanctions in denying Jules’s § 3582(c)(2) motion. Id. We held that when the district court relies upon new information, “each party must be given notice of and an opportunity to contest [the] new information.” Id. at 1245. Notice and opportunity to respond, however, are not required when the court does not intend to rely on the new information. Id. In this case, unlike Jules , the district court lacked authority to reduce Daniel’s sentence because he was sentenced as a career offender, and Ame ndment 750 does not affect his G uideline range, as discussed above

. See 595 F.3d at 1241. As a result, the court did not reach any sentencin g factors, and

Case: 12-13128 Date Filed: 01/10/2013 Page: 11 of 1212 there was no sentencing factor “reasonably in dispute” such that a hearing would be warranted under § 6A1.3. U.S.S.G. § 6A1.3(a). Moreover, the court did not rely on any new information to which Daniel would be entitled to notice and an
op portunity to contest, but instead determined that it lacked authority to reduce Daniel’s sentence due to his career

- offender status. Jules , 595 F.3d at 1245. Accordingly, the court did not abuse its discretion in denying a hearing on Daniel’s § 3582(c)(2 ) motion. Upon review of the entire record on appeal, and after consideration of the parties’ appellate briefs, we affirm. AFFIRMED. Case: 12-13128 Date Filed: 01/10/2013 Page: 12 of 12