United States v. Robert Butler ( 2012 )

Case: 12-10665 Date Filed: 07/30/2012 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10665
Non-Argument Calendar
________________________
D.C. Docket No. 1:95-cr-00430-WPD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT BUTLER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 30, 2012)
Before BARKETT, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 12-10665 Date Filed: 07/30/2012 Page: 2 of 5
Robert Butler, a federal prisoner convicted of a crack cocaine offense,
appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce
his sentence per Amendment 750, which lowered the base offense levels
applicable to crack cocaine. See U.S.S.G. § 1B1.10(c). On appeal, Butler argues
that the reasoning of Freeman v. United States, ___ U.S. ___, 131 S. Ct. 2685(2011), undermined to the point of abrogation this Court’s rationale in United
States v. Moore, 541 F.3d 1323 (11th Cir. 2008). He asserts that even though he
was sentenced as a career offender, he is not categorically ineligible for a sentence
reduction under § 3582(c)(2) because the offense level for his underlying crack
cocaine offense was “a relevant part of the analytical framework the district court
used to determine” Butler’s sentence.
We review de novo the district court’s legal conclusions regarding the scope
of its authority under 18 U.S.C. § 3582(c)(2). Id. at 1326.
A district court may modify an imprisonment term “in the case of a
defendant who has been 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).
However, a reduction in the imprisonment term is not authorized under
§ 3582(c)(2) where the listed amendment does not have the effect of lowering the
2
Case: 12-10665 Date Filed: 07/30/2012 Page: 3 of 5
defendant’s applicable guideline range “because of the operation of another
guideline or statutory provision (e.g., a statutory mandatory minimum term of
imprisonment).” U.S.S.G. § 1B1.10, cmt. 1; see also id. § 1B1.10(a)(2)(B);
Moore, 541 F.3d at 1330 (“Where 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.”).
A district court follows a two-step process in ruling on a § 3582(c)(2)
motion. United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). First, the
court must 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. “In
undertaking this first step, only the amended guideline is changed. All other
guideline application decisions made during the original sentencing remain
intact.” Id. (quotations omitted). If it reaches the second step, the court must
decide, in its discretion, whether to retain the original sentence or to resentence the
eligible defendant under the amended guideline range. Id. at 781.
Where a defendant’s sentence is “based on” the guideline range applicable
to career offenders under U.S.S.G. § 4B1.1, the defendant’s base offense level
3
Case: 12-10665 Date Filed: 07/30/2012 Page: 4 of 5
under U.S.S.G. § 2D1.1 plays no role in the calculation of his guideline range.
See Moore, 541 F.3d at 1327. Thus, even when a retroactive amendment reduces
such a defendant’s base offense level, the amendment would not lower his
applicable guideline range because of the application of the career offender
guidelines. See id. at 1327-28, 1330.
In Freeman, five justices of the Supreme Court held that entering into a Rule
11(c)(1)(C) plea agreement did not categorically bar a defendant from obtaining
relief pursuant to 18 U.S.C. § 3582(c).1 See Freeman, ___ U.S. at ___, 131 S. Ct.
at 2695 (Sotomayor, J., concurring). Rather, where such a plea agreement
“expressly uses a Guidelines sentencing range applicable to the charged offense to
establish the term of imprisonment, and that range is subsequently lowered by the
United States Sentencing Commission, the term of imprisonment is ‘based on’ the
range employed and the defendant is eligible for sentence reduction under
§ 3582(c)(2).” Id.
We remain bound by the rule of our prior precedent “unless and until it is
overruled or undermined to the point of abrogation by the Supreme Court or by
this [C]ourt sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352 (11th
1
See Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 993 (1977) (ruling
that, in a fragmented decision, “the holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the narrowest grounds”).
4
Case: 12-10665 Date Filed: 07/30/2012 Page: 5 of 5
Cir. 2008). “While an intervening decision of the Supreme Court can overrule the
decision of a prior panel of our court, the Supreme Court decision must be clearly
on point.” Id. (quotations omitted).
We disagree with Butler’s contention that Freeman abrogated Moore.
Freeman has nothing to do with how retroactive amendments affect career
offenders. Freeman was decided in the context of a Rule 11(c)(1)(C) guilty plea,
which allows the prosecutor and defendant to reach a plea bargain specifying a
particular term of imprisonment. In Freeman, the Court held that because such an
agreement might be expressly based on a guideline range, the resulting sentence
could be affected by a retroactive amendment. The career offender guidelines, by
contrast, are based on the statutory maximum sentence for the offense, see 28
U.S.C. § 994(h), and a career offender’s sentence is based on that statute.
Freeman is not “clearly on point” and therefore did not abrogate Moore. See
Archer, 531 F.3d at 1352.
Here, the district court properly denied Butler’s 18 U.S.C. § 3582(c)(2)
motion because it is undisputed that the retroactive application of Amendment 750
would not lower his guideline range.
AFFIRMED.2
2
Butler’s request for oral argument is DENIED.
5