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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-16052
Non-Argument Calendar
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D.C. Docket No. 7:92-cr-00011-HL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO QUINN TERRY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(July 19, 2013)
Before MARTIN, JORDAN, and FAY, Circuit Judges.
PER CURIAM:
Antonio Quinn Terry, proceeding through counsel, appeals the district
court’s denial of his motion for a sentence reduction, pursuant to 18 U.S.C.
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§ 3582(c)(2) and Amendment 750. For the reasons set forth below, we affirm the
district court’s denial of Terry’s § 3582(c)(2) motion.
I.
In 1992, Terry pled guilty to possession with intent to distribute cocaine base
(“crack cocaine”) and possession of a firearm by a convicted felon. The
presentence investigation report (“PSI”) calculated Terry’s base offense level,
pursuant to U.S.S.G. § 2K2.1. However, because Terry was an armed career
criminal, his guideline range was calculated pursuant to U.S.S.G. § 4B1.4. Terry
was sentenced to a total sentence of 300 months’ imprisonment. In 2011, Terry
filed a § 3582(c)(2) motion based on Amendment 750 and the Fair Sentencing Act
of 2010 (“FSA”), Pub. L. No. 111-220,
124 Stat. 2372. After the government
responded, the district court determined that Terry was not eligible for a § 3582(c)
reduction based on Amendment 750, because his sentence was not based on any
drug-related guidelines. Further, the FSA was not applicable to Terry because he
was sentenced in 1992. Thus, the court determined that he was not entitled to a
sentence reduction.
II.
On appeal, Terry argues that he was entitled to a sentence reduction
notwithstanding his career offender status. 1 Citing to Freeman v. United States,
1
Terry erroneously refers to himself as a career offender throughout his brief.
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564 U.S. ___,
131 S.Ct. 2685,
180 L.Ed.2d 519 (2011), he argues that his sentence
was based on U.S.S.G. § 2D1.1(c), which was amended by Amendment 750,
because § 2D1.1(c) remained a point of reference throughout the process of
calculating his guideline range. Terry argues that we should not rely on our
decision in United States v. Lawson,
686 F.3d 1317 (11th Cir.), cert. denied,
133
S.Ct. 568 (2012), in the instant case because it relies unduly on Justice
Sotomayor’s concurrence, which was not the controlling opinion in the case, does
not specifically address career offenders, and lacks any in-depth analysis of the
FSA’s background. Terry further argues that he was entitled to be resentenced
under the FSA’s reduced statutory penalties for crack-cocaine offenses. In his
reply brief, Terry also argues that United States v. Berry,
701 F.3d 374 (11th Cir.
2012), and United States v. Hippolyte,
712 F.3d 535 (11th Cir. 2013), are
distinguishable from his case.
We review de novo the district court’s legal conclusions about the scope of
its authority under § 3582(c)(2). Lawson, 686 F.3d at 1319. Section 3582(c)(2)
provides that a court may reduce a defendant’s sentence where the defendant is
sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.
18 U.S.C.
§ 3582(c)(2); U.S.S.G. § 1B1.10(a)(1).
In United States v. Moore, we held that a career offender is not entitled to
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§ 3582(c)(2) relief where a retroactive guideline amendment reduces his base
offense level, but does not alter the sentencing range upon which his sentence was
based.
541 F.3d 1323, 1330 (11th Cir. 2008). We further held that the rationale of
Moore is applicable to armed career criminals, notwithstanding the fact that armed
career criminals were sentenced under § 4B1.4 and career offenders were
sentenced under U.S.S.G. § 4B1.1. United States v. Thomas,
545 F.3d 1300, 1302
(11th Cir. 2008). In Lawson, we rejected a career offender’s argument that, in light
of the Supreme Court’s decision in Freeman, the holding of Moore was overruled,
such that he was entitled to a sentence reduction based on § 3582(c)(2) and
Amendment 750, despite his sentence being based on the career offender guideline.
Lawson, 686 F.3d at 1319-21. In Freeman, the question before the Supreme Court
was whether defendants who entered into Fed.R.Crim.P. 11(c)(1)(C) plea
agreements were eligible for § 3582(c)(2) relief. Freeman, 564 U.S. at ____,
131
S.Ct. at 2690. Neither the plurality opinion nor Justice Sotomayor’s concurrence
in Freeman addressed defendants who were assigned a base offense level under
one guideline section, but who were ultimately assigned a total offense level and
guideline range under § 4B1.1. Lawson, 686 F.3d at 1321. Thus, Freeman did not
overrule Moore’s holding that a career offender was not entitled to § 3582(c)(2)
relief where his guideline range was not lowered by a retroactive amendment
because it was not “clearly on point” to the issue that arose in Moore. Id.
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(quotation omitted). Accordingly, we held that Lawson, a career offender, was not
entitled to relief based on Amendment 750 and § 3582(c)(2), as his guideline range
based on § 4B1.1 was not reduced by Amendment 750. Id.
In Berry, we addressed the applicability of Amendment 750 and the FSA in
the context of an § 3582(c)(2) proceeding. 701 F.3d at 376-77. Berry was
convicted of a crack cocaine offense and sentenced in 2002, and his initial
guideline range was 360 months to life imprisonment, which was based on his
status as a career offender under § 4B1.1(b), not on the drug quantity tables in
§ 2D1.1. Id. at 376. On appeal, we held that the district court did not have the
authority to grant Berry’s § 3582(c)(2) motion because Amendment 750 had no
effect on Berry’s initial guideline range of 360 months to life imprisonment or his
guideline sentence of life imprisonment. Id. at 377. In addition, we rejected
Berry’s argument that he was eligible for a § 3582(c)(2) reduction under the FSA,
determining that the FSA was not an amendment to the Guidelines by the
Sentencing Commission, but rather a statutory change by Congress. Id. Thus, it
did not serve as a basis for a § 3582(c)(2) sentence reduction in Berry’s case. Id.
Even assuming that Berry could bring his FSA claim in a § 3582(c)(2) motion, his
claim still failed because he was convicted and sentenced in 2002 and the FSA did
not apply retroactively to his 2002 sentences. Id. We pointed out that the general
savings clause in
1 U.S.C. § 109 states that the repeal of a statute shall not have the
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effect of releasing or extinguishing any penalty incurred under that statute unless
the repealing Act expressly so provides.
Id. We then agreed with “every other
circuit to address the issue” that there was no evidence that Congress intended the
FSA to apply to defendants who had been sentenced before the August 3, 2010,
date of the FSA’s enactment.
Id. Finally, we distinguished the Supreme Court’s
decision in Dorsey v. United States, 567 U.S. ___,
132 S.Ct. 2321,
183 L.Ed.2d
250 (2012), noting that Dorsey did not suggest that the FSA’s new mandatory
minimums should apply to defendants, like Berry, who were sentenced before the
FSA’s effective date. Berry, 701 F.3d at 377-78.
In Hippolyte, we rejected Hippolyte’s arguments (1) that Congress intended
for the FSA to apply to drug-crime sentence reductions under § 3582(c)(2) for the
same reasons articulated in Dorsey and (2) that it would be inconsistent to apply
the more lenient sentencing ranges of Amendment 750, but keep the harsh pre-FSA
mandatory minimums in a § 3582(c)(2) proceeding involving a defendant
sentenced before the FSA’s enactment. 712 F.3d at 539-40, 542. We determined
that Berry was indistinguishable from Hippolyte’s case, and thus, the FSA’s
reduced statutory penalties did not apply to his case. Id. at 542.
Based on our decision in Thomas, Terry is not entitled to a § 3582(c)(2)
sentence reduction because Terry was sentenced as an armed career criminal, and
Amendment 750 did not lower his guideline range, as Amendment 750 did not
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address § 4B1.4. See U.S.S.G. App. C, Amends. 748, 750; Thomas,
545 F.3d at
1302. Freeman did not overrule Thomas. Specifically, neither the plurality nor
Justice Sotomayor’s concurrence in Freeman addressed defendants who were
assigned a base offense level under one guideline section, but who were ultimately
assigned a total offense level and guideline range under § 4B1.4. See generally
Freeman, 564 U.S. at ___,
131 S.Ct. at 2690-700. Thus, Freeman is not “clearly
on point” to the issue that arose in Thomas, and Thomas is controlling in this case.
See Thomas,
545 F.3d at 1302; see also Lawson, 686 F.3d at 1321 (quotation
omitted). Accordingly, § 3582(c)(2) does not authorize a sentence reduction based
on Amendment 750 in Terry’s case because he cannot show that Amendment 750
lowered his guideline range. Moreover, the crack cocaine quantity tables listed in
§ 2D1.1(c), which Amendment 750 amended, were not referenced in calculating
Terry’s base offense level, much less the guideline range upon which his sentence
was ultimately based. See U.S.S.G. App. C, Amends. 748, 750.
Terry also argues that he is entitled to a § 3582(c)(2) sentence reduction
based on the FSA’s reduced statutory penalties. Pursuant to the armed career
criminal guideline, Terry’s sentence was calculated by referencing the career
offender guideline, which bases a defendant’s offense level on the statutory
maximum for his offense. The PSI calculated his offense level under the career
offender guideline based on the statutory maximum for his felon-in-possession
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case, not the statutory maximum for his crack-cocaine offense. However, even
assuming that Terry’s armed career criminal offense level was based on the
statutory maximum for his crack-cocaine offense, he would not be entitled to
§ 3582(c)(2) relief. As we stated in Berry, the FSA is not a guideline amendment,
and thus, Terry is not eligible for a § 3582(c)(2) sentence reduction based on the
FSA. See Berry, 701 F.3d at 376-77. To the extent Terry argues that Berry is
distinguishable because he is seeking to reduce his sentence based both on
Amendment 750 and the FSA, his argument is without merit because Amendment
750 has no application to this case. Further, nothing in Dorsey suggests that the
FSA’s new mandatory minimums should apply to defendants who were sentenced
long before the FSA’s effective date. See Berry, 701 F.3d at 377-78; Hippolyte,
712 F.3d at 539-40, 542. Thus, the FSA does not apply to Terry’s case, and he has
not shown that he is entitled to a § 3582(c)(2) sentence reduction because he has
not shown that that an amendment to the Guidelines has the effect of reducing his
sentence. Accordingly, the district court did not err in denying Terry’s
§ 3582(c)(2) motion.
For the foregoing reasons, we affirm.
AFFIRMED.
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