[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-13128 

Non-Argument Calendar

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D.C. Docket No. 0:91-cr-06032-DLG-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

ROMAIN DANIEL, 

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(January 10, 2013)

Before TJOFLAT, 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 

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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 result in a lower statutory maximum

sentence. This, he argues, would subsequently lower his Guideline range as a 

career offender. Daniel specifically contends that the sentencing 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 

Guideline range. Daniel also argues that the district court abused its discretion by 

failing to grant a hearing 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 pleaded 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

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investigation report (PSI) calculated Daniel’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 held accountable for 198.2 grams 

of cocaine base. Daniel also qualified as a career offender pursuant to U.S.S.G. 

§ 4B1.1 because 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. Because the statutorymaximum sentence was life imprisonment, the offense level was 37 pursuant 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 history category of VI, Daniel’s Guideline range was 292 to 365 months’ 

imprisonment. 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, the 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 

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authority to reduce his sentence based on the Sentencing Commission’s retroactive 

Amendment 750. He initially argued 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. Daniel also requested a hearing pursuant to U.S.S.G. 

§ 6A1.3 because the drug quantity was not charged in the indictment 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 quantity. 

The district court denied Daniel’s motion, holding that Amendment 750 did 

not alter the sentencing range for career offenders such as Daniel. Daniel timely 

moved for reconsideration and filed a notice of appeal. In his motion for 

reconsideration, 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. The district court denied the motion for reconsideration 

without comment. 

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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 abuses 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 Reduction

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 cocaine base. U.S.S.G. § 2D1.1(c)(5).

Generally, in considering a motion for a sentence reduction, the district court 

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

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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 

Guideline is changed, and all other Guideline application decisions made during 

the original sentencing should remain intact during 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.

Where a retroactively applicable Guideline amendment reduces a 

defendant’s base offense level, but does not alter the sentencing range upon which 

his sentence was based, the district court is not authorized to grant a sentence 

reduction 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 defendant was sentenced as a career offender. See id. 

at 1326–30 (holding that a defendant whose original sentence was based upon the 

career-offender Guideline, and not § 2D1.1, could not receive a sentence reduction 

based on Amendment 706, because it did not have the effect of lowering the 

applicable Guideline range). In Moore, this court noted that we undertake a twoCase: 12-13128 Date Filed: 01/10/2013 Page: 6 of 12 
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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 have no effect on the defendants’ 

Guideline ranges due to their statuses 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 on 

Amendment 750. Id. at 1–2. We noted that Berry’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 to a 

statutory mandatory minimum life sentence under § 841(b)(1)(A), such that his 

Guideline range became life imprisonment. Id. at 3–4. Accordingly, 

Amendment 750 had no effect on Berry’s Guideline 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 rather a statutory 

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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 preAct offenders.” Id. at 6–7 (emphasis in original). We also noted that, after the 

FSA, a defendant 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 Berry were resentenced under the FSA, his statutory 

maximum would remain life imprisonment, and his offense level and applicable 

Guideline range under § 4B1.1 would remain the same. Id.

Finally, in Apprendi, the Supreme Court held that, “[o]ther than the fact 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 

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context of collateral 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. Amendment 750 would not affect Daniel’s Guideline 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, 

amend. 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 the 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 Daniel was sentenced in 1991, and the FSA does not 

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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 statutory 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. 

Finally, Daniel’s argument that Apprendi reduces the applicable statutory 

maximum from life imprisonment to 20 years because the drug quantity was not 

charged in the indictment is misguided. Apprendi does not concern the application 

of a retroactive Guideline amendment and does not apply in § 3582(c)(2) 

proceedings, because in such proceedings district courts may only substitute the 

amended Guideline, leaving all other sentencing decisions intact. See Bravo, 

203 F.3d at 780–81. Moreover, Daniel was sentenced 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

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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 hearing 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 

Amendment 750 does not affect his Guideline range, as discussed above. See 

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

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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 

opportunity 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.

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