[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-13909

Non-Argument Calendar

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D.C. Docket No. 3:04-cr-00240-HES-TEM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GERALD JERMAINE BRABHAM,

a.k.a. Duck,

a.k.a. Gerald Jermain Brabham,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(April 29, 2013)

Before HULL, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM: 

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Gerald Jermaine Brabham, a federal prisoner convicted of crack cocaine 

offenses, appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion to 

reduce his sentence based on Amendment 750 to the Sentencing Guidelines, which 

revised the crack cocaine quantity tables in U.S.S.G. § 2D1.1(c). See U.S.S.G. 

§ App. C, amend 750 (Nov. 2011). The district court denied the § 3582(c)(2) 

motion because Brabham was sentenced as a career offender, pursuant to U.S.S.G. 

§ 4B1.1, and thus Amendment 750 had no effect on his guidelines calculations. 

After review, we affirm.1

Pursuant to § 3582(c)(2), the district court may reduce a defendant’s prison 

term if the defendant was “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).” 18 U.S.C. § 3582(c)(2); see also

U.S.S.G. § 1B1.10(a)(1). However, “[w]here 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.” United States v. Moore, 541 F.3d 1323, 1330 

(11th Cir. 2008); see also U.S.S.G. § 1B1.10(a)(2)(B) (providing that a 

§ 3582(c)(2) reduction is not authorized if the amendment “does not have the effect 

of lowering the defendant’s applicable guideline range”).

 

1

“We review de novo a district court’s conclusions about the scope of its legal authority 

under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d 983, 984 (11th Cir. 2008).

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A sentence reduction is not authorized if the amendment does not lower the 

defendant’s applicable guidelines range “because of the operation of another 

guideline or statutory provision.” U.S.S.G. § 1B1.10 cmt. n.1(A). Further, the 

applicable guidelines range that must be lowered to be eligible for a § 3582(c)(2)

reduction is “the guideline range that corresponds to the offense level and criminal 

history category . . . determined before consideration of any departure provision in 

the Guidelines Manual or any variance.” Id.; see also 18 U.S.C. § 3582(c)(2) 

(requiring any reduction to be “consistent with applicable policy statements issued 

by the Sentencing Commission”). As such, when a crack cocaine defendant’s 

offense level was determined by the career offender provision, U.S.S.G. § 4B1.1, 

rather than § 2D1.1(c)’s drug quantity table, the defendant is not eligible for a 

§ 3582(c)(2) reduction based on amendments to the crack cocaine offense levels in 

§ 2D1.1(c). This is because those amendments did not lower the sentencing range 

upon which the defendant’s sentence was based. See Moore, 541 F.3d at 1327-28

(involving Amendment 706).

The district court did not err in denying Brabham’s § 3582(c)(2) motion. At 

his sentencing, Brabham was designated a career offender, and his base offense 

level of 37 and his sentencing range of 262 to 327 months were based on U.S.S.G. 

§ 4B1.1, not on U.S.S.G. § 2D1.1(c). Amendment 750 did not change the offense 

levels in § 4B1.1. Thus, Amendment 750 did not lower Brabham’s sentencing 

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range. Under our binding precedent in Moore, the district court lacked authority 

under § 3582(c)(2) to reduce Brabham’s sentence.

Brabham argues that, despite his career offender status, he remains eligible 

for a sentence reduction in light of the Supreme Court’s recent decision in Freeman 

v. United States, 564 U.S. ___, 131 S. Ct. 2685 (2011). As Brabham concedes, 

however, this Court recently concluded in United States v. Lawson that Moore

remains binding precedent and was not abrogated by Freeman. See United States 

v. Lawson, 686 F.3d 1317, 1320-21 (11th Cir.), cert. denied, ___ U.S. ___, 133 S. 

Ct. 568 (2012) (explaining that Freeman did not address defendants whose total

offense levels were calculated according to the career offender provision and 

therefore Freeman was not “clearly on point” with the career offender issue in 

Moore).

Brabham contends that Lawson “does not control his appeal because unlike 

the defendant in Lawson, Mr. Brabham was sentenced below his career offender 

guideline range” due to a substantial-assistance downward departure.

2

 This factual 

distinction is not a basis to ignore Lawson’s conclusion that Freeman did not 

overrule Moore. 

 

2

Specifically, Brabham received a U.S.S.G. § 5K1.1 downward departure based on his 

substantial assistance and was sentenced to 210 months in prison. Brabham also later received 

two Rule 35(b) substantial-assistance reductions, and is currently serving a 140-month sentence.

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Moreover, it is not Lawson, but Moore that controls Brabham’s appeal. In 

Moore, one of the defendants, like Brabham, received a substantial assistance 

downward departure. See 541 F.3d at 1330. Nonetheless, we concluded in Moore

that the defendant’s sentence was based on his career-offender sentencing range 

and that he was therefore ineligible for a § 3582(c)(2) reduction. Id. 

Notably, Moore, decided in 2008, is supported by the commentary to 

U.S.S.G. § 1B1.10, which was amended in 2011 to address this precise point. See

U.S.S.G. App. C, amend. 759, Reason for Amendment (Nov. 2011). That 

commentary clearly provides that the “applicable guideline range” an amendment 

must lower is the range determined before any downward departure for substantial 

assistance. See U.S.S.G. § 1B1.10, cmt. n.1(A). In short, we remain bound by 

Moore, and, under Moore, Brabham was not eligible for a § 3582(c)(2) sentence 

reduction.

AFFIRMED.

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