United States v. Tamera Nicole King , 507 F. App'x 853 ( 2013 )

Case: 12-13006 Date Filed: 02/08/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13006
Non-Argument Calendar
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D.C. Docket No. 1:06-cr-20753-ASG-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAMERA NICOLE KING,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 8, 2013)
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Before CARNES, BARKETT and BLACK, Circuit Judges.
PER CURIAM:
Tamera King, through counsel, appeals the district court’s denial of her
request for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and
Amendment 750 to the Sentencing Guidelines. She argues the district court erred
by determining it lacked authority to reduce her sentence because she had been
sentenced as a career offender. She asserts, under Freeman v. United States, 131
S. Ct. 2685 (2011), she is eligible for a sentence reduction because the district
court varied from the career offender guidelines and instead based her sentence on
the unenhanced guidelines range.
“[W]e review de novo the district court’s legal conclusions regarding the
scope of its authority under the Sentencing Guidelines.” United States v. Moore,
541 F.3d 1323, 1326 (11th Cir. 2008). A district court may not modify a term of
imprisonment unless a defendant was sentenced “based on a sentencing range that
has subsequently been lowered by the Sentencing Commission.” See 18 U.S.C.
§ 3582(c)(2). If a defendant is a career offender, her base offense level is generally
determined under the career offender guideline in U.S.S.G. § 4B1.1 and not the
drug quantity guideline in § 2D1.1. See Moore, 541 F.3d at 1327-28. As such, a
retroactive amendment to the drug quantity table at § 2D1.1 does not have the
effect of lowering her career offender-based guideline range within the meaning of
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§3582(c)(2), and district courts are not authorized to reduce a sentence on that
basis. See id. at 1327-28, 1330.
In Freeman, the Supreme Court decided a case involving a plea agreement
under Federal Rule of Criminal Procedure 11(c)(1)(C), in which the defendant
entered a plea agreement that recommended a particular sentence. Freeman, 131
S. Ct. at 2690. In Justice Sotomayor’s concurrence, she determined that the
defendant was eligible for a sentence reduction under § 3582, because the express
terms of his plea agreement based his sentence on a guideline sentencing range
applicable to the charged offense. Id. at 2695. As such, the term of imprisonment
in such a scenario is “based on” the range set by the Sentencing Guidelines, and a
defendant is eligible for a sentence reduction under § 3582 if that range is
subsequently lowered. Id. at 2695-2700. We recently held in United States v.
Lawson, 686 F.3d 1317 (11th Cir. 2012), that Moore remains binding precedent in
this Circuit because it was not overruled by Freeman, as Freeman did not address
defendants whose total offense level was calculated according to the career
offender provision. See Lawson, 686 F.3d at 1321.
The district court properly denied King’s § 3582(c)(2) request because she
was sentenced as a career offender, so Amendment 750 did not lower her
applicable guideline range. We held in Moore, and reaffirmed in Lawson, that
defendants sentenced as career offenders are not eligible for reductions pursuant to
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§ 3582(c)(2). See Lawson, 686 F.3d at 1321; Moore, 541 F.3d at 1329-30.
Moreover, although the district court varied downward from the enhanced
guideline range, it did so pursuant to the §3553(a) factors, not pursuant to §4A1.3,
such that the possible exception identified in Moore does not apply. See Moore,
541 F.3d at 1329-30. Accordingly, the district court did not abuse its discretion by
denying King’s § 3582(c)(2) motion.
AFFIRMED.
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