United States v. Lisa Harris ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13139
Non-Argument Calendar
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D.C. Docket No. 2:04-cr-00104-VMC-DNF-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LISA HARRIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
____________________________
(June 4, 2013)
Before TJOFLAT, PRYOR, and JORDAN, Circuit Judges.
PER CURIAM:
Lisa Harris appeals the district court’s denial of her motion for a sentence
reduction under 18 U.S.C. § 3582(c)(2). She contends that Amendment 750 to the
Sentencing Guidelines authorized the court to reduce her sentence, despite her
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status as a career offender, because a downward departure led to her receiving a
sentence below her career offender guideline range. She also argues that her
sentence was based at least in part on her crack cocaine guideline range because
that guideline is the “starting point” for all crack cocaine offenses. After review,
we affirm.
I.
Ms. Harris pled guilty to possession with the intent to distribute fifty grams
or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii),
and to conspiracy to possess with the intent to distribute five grams or more of
crack cocaine, in violation of 18 U.S.C. § 2. Because she had two prior felony
convictions, the district court sentenced Ms. Harris as a career offender. The court
therefore used United States Sentencing Guidelines § 4B1.1 instead of § 2D1.1 to
determine her offense level and criminal history category, which (after an
acceptance of responsibility reduction) were 34 and VI, respectively. See U.S.S.G.
§ 4B1.1. Because her criminal history category overrepresented the seriousness of
her past criminal conduct, the court departed downward to category V. See
U.S.S.G. § 4A1.3. Ms. Harris’ resulting guideline range was 235 to 293 months,
and the court sentenced her to 235 months, the low end of that range.
Ms. Harris then filed a pro se §3582(c)(2) motion based on Amendment 706.
The district court denied that motion, concluding that it lacked authority to reduce
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Ms. Harris’ sentence because her sentence was based on the career offender
guideline and not on the crack cocaine guideline. Ms. Harris later filed a second §
3582(c)(2) motion, this time based on Amendment 750. The district court denied
that motion on the same grounds, and Ms. Harris appealed that denial to us.
II.
We review de novo a district court’s conclusions about the scope of its
authority under § 3582(c)(2). See United States v. Moore, 541 F.3d 1323, 1326
(11th Cir. 2008). Where a retroactively applicable guideline amendment does not
alter the sentencing range upon which a defendant’s sentence was based, §
3582(c)(2) does not authorize a sentence reduction. See id. at 1330. Amendment
750, which lowered the crack cocaine base offense levels in § 2D1.1, did nothing
to the career offender base offense levels in § 4B1.1. Because Ms. Harris was
sentenced under § 4B1.1 and not § 2D1.1, then, Amendment 750 did not alter the
range upon which her sentence was based. See id. Under our decision in Moore,
that should be the end of the story.
But Ms. Harris invites us to add another chapter: she contends that the
Supreme Court’s decision in Freeman v. United States, 564 U.S. ___, 131 S. Ct.
2685 (2011), undermined our Moore decision to the point of abrogation.
Unfortunately for Ms. Harris, however, we have already rejected that argument in
United States v. Lawson, 686 F.3d 1317, 1321 (11th Cir. 2012). Although she
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acknowledges that fact, Ms. Harris argues that Lawson is distinguishable from her
case because, unlike the Lawson defendant, she was not sentenced within the
career offender guideline range. Instead, because the sentencing judge granted her
a downward departure under § 4A1.3 and reduced her criminal history category
from VI to V, the sentence she ultimately received was below her career offender
guideline range.
While this fact does differentiate Ms. Harris from the defendant in Lawson,
it makes her similar to two of the defendants in Moore. In Moore, two defendants
received sentences below their career offender guideline ranges because of
downward departures. Despite that fact, we held that neither defendant was eligible
for a § 3582(c)(2) reduction because each had been sentenced as a career offender.
See 541 F.3d at 1330. So, like Ms. Harris’ abrogation argument, we have already
rejected this argument as well. And like the two Moore defendants, Ms. Harris
(even with her downward departure) was still sentenced based on her career
offender guideline range. That means she is not eligible for a sentence reduction
under § 3582(c)(2). See, e.g., U.S.S.G. § 1B1.10 cmt. n.1 (clarifying that the
applicable guideline range evaluated when assessing eligibility for a sentence
reduction is the one “determined before consideration of any departure provision”).
Ms. Harris’ final argument—that her sentence was in part “based on” the
crack cocaine guideline range because that guideline is the “starting point for
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sentencing in all crack cases”—does not make her eligible for a § 3582(c)(2)
reduction. As we have recognized, “[a]ny reduction must be ‘consistent with
applicable policy statements issued by the Sentencing Commission.’” See United
States v. Glover, 686 F.3d 1203, 1206 (11th Cir. 2012) (quoting § 3582(c)(2)).
Here, the applicable policy statement requires that an amendment “have the effect
of lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2).
When the district court determined that the career offender guideline applied
to Ms. Harris, the court replaced her original sentencing guideline range (the crack
cocaine guideline range in § 2D1.1) with the one contained in § 4B1.1(b). That
became her applicable guideline range, and that range was not affected by
Amendment 750. Cf. United States v. Williams, 549 F.3d 1337, 1342 (11th Cir.
2008) (finding, based on policy statements, defendant ineligible for § 3852(c)(2)
reduction because he “was subject to a statutory mandatory minimum that replaced
his original sentencing guideline range” and “was not sentenced according to the
base offense level in § 2D1.1”). Ms. Harris was therefore ineligible for a sentence
reduction, and the district court did not err in denying her § 3582(c)(2) motion.
III.
The district court’s denial of Ms. Harris’ motion for a sentence reduction
under § 3582(c)(2) is affirmed.
AFFIRMED.
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