United States v. Bobby Earl Lee , 714 F. App'x 979 ( 2018 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-11690
Non-Argument Calendar
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D.C. Docket No. 8:93-cr-00209-SDM-EAJ-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOBBY EARL LEE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(March 6, 2018)
Before MARCUS, MARTIN and JILL PRYOR, Circuit Judges.
PER CURIAM:
Bobby Earl Lee, proceeding pro se, appeals the district court’s denial of his
motion to reduce his sentence, pursuant to 18 U.S.C. § 3582(c)(2), based on
Amendment 782 to the Sentencing Guidelines. He argues that, following the
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commutation of his life sentence, he became eligible for further sentence reduction
based on the amount of drugs that his offense involved. After careful review, we
affirm.
We review the district court’s conclusions about the scope of its legal
authority under § 3582(c)(2) de novo. United States v. Colon, 707 F.3d 1255,
1258 (11th Cir. 2013). A district court may modify a defendant’s term of
imprisonment if the defendant was sentenced based on a sentencing range that
subsequently has been lowered by the Sentencing Commission. 18 U.S.C. §
3582(c)(2). Any reduction, however, must be consistent with the Sentencing
Commission’s policy statements. Id. A defendant is eligible for a sentence
reduction under § 3582(c)(2) when an amendment listed in U.S.S.G. § 1B1.10(d)
lowers his guidelines range that was calculated by the sentencing court prior to any
departure or variance. U.S.S.G. § 1B1.10, comment. (n.1(A)).
When the district court considers a § 3582(c)(2) motion, it first must
recalculate the guidelines range under the amended guidelines. United States v.
Bravo, 203 F.3d 778, 780 (11th Cir. 2000). When recalculating the guidelines
range, it can only substitute the amended guideline and must keep intact all other
guidelines decisions made during the original sentencing. Id. The district court
next considers the § 3553(a) factors. Id. at 781. But if a defendant is not affected
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by an amendment, the court need not consider the § 3553(a) factors. See United
States v. Webb, 565 F.3d 789, 793 (11th Cir. 2009).
Amendment 782 provides a two-level reduction in the base offense levels for
most drug quantities listed in the Drug Quantity Table in U.S.S.G. § 2D1.1(c).
U.S.S.G. App. C, amend. 782. A district court is not authorized to reduce a
defendant’s sentence under § 3582(c)(2) where a retroactively applicable
guidelines amendment reduces his base offense level but does not alter the
guidelines range upon which his sentence was based. United States v. Moore, 541
F.3d 1323, 1328-30 (11th Cir. 2008). Specifically, when a drug offender is
sentenced under the career-offender guideline in § 4B1.1, the guidelines range
upon which his sentence is based is calculated from § 4B1.1, not § 2D1.1. United
States v. Lawson, 686 F.3d 1317, 1321 (11th Cir. 2012). Because an amendment
to § 2D1.1 does not affect a career offender’s guidelines range, he is ineligible for
a sentence reduction under § 3582(c)(2) based on an amendment to that guideline.
Id. Moreover, “[t]he law is clear that a sentencing court lacks jurisdiction to
consider a § 3582(c)(2) motion, even when an amendment would lower the
defendant’s otherwise-applicable Guidelines sentencing range, when the defendant
was sentenced on the basis of a mandatory minimum.” United States v. Mills, 613
F.3d 1070, 1078 (11th Cir. 2010).
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Here, the district court did not err in rejecting Lee’s § 3582 motion. For
starters, Lee’s guideline-range minimum was determined by the mandatory
minimum sentence for Count 2. 21 U.S.C. § 841(b)(1)(A). As a result, although
Amendment 782 would reduce his base offense level if it were calculated based on
drug weight, it would not alter the guidelines-range minimum because the
guidelines range would still be based on the mandatory minimum sentence. See
Mills, 613 F.3d at 1077-78.
In any event, even absent his mandatory-minimum sentence, Lee would
have been sentenced as a career offender. As we’ve held, when a drug offender is
sentenced under the career-offender guideline in § 4B1.1, his total offense level
and guideline range is determined by the career-offender guideline in § 4B1.1, not
§ 2D1.1. See Lawson, 686 F.3d at 1321. While Lee argues he was not sentenced
as a career offender, the district court and his counsel both noted at sentencing that
he was a career offender and would face a range of 360-months to life, plus the
consecutive § 924(c) sentence, based on his applicable guideline calculations.
Accordingly, the district court did not err in concluding that Lee was
ineligible for a sentence reduction pursuant to § 3582(c)(2) and Amendment 782,
and it therefore did not need to consider the § 3553(a) factors. See Webb, 565 F.3d
at 793. Moreover, because Lee is not entitled to relief based on at least two
grounds -- the statutory mandatory minimum and the career offender guideline --
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we have no occasion to address whether a commuted sentence is eligible for
further reduction under § 3582(c)(2).
AFFIRMED.
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