United States v. Edward Lee Bartley , 516 F. App'x 843 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14717
Non-Argument Calendar
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D.C. Docket No. 5:99-cr-00029-WTH-TBS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD LEE BARTLEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 12, 2013)
Before MARTIN, JORDAN, and FAY, Circuit Judges.
PER CURIAM:
Edward Bartley, appearing pro se, appeals the district court’s denial of his
motion for a reduction of sentence, filed pursuant to 18 U.S.C. § 3582(c)(2). After
review of the record and the parties’ briefs, we affirm.
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On August 4, 2000, Mr. Bartley pled guilty to possessing cocaine base with
intent to distribute in violation of 18 U.S.C. § 841(a)(1). The pre-sentence
investigation report (“PSI”) indicated that Mr. Bartley’s total offense level was 25
based upon the quantity of cocaine base (23.5 grams) as well as adjustments for
accepting responsibility and assisting authorities by providing timely and complete
information. Mr. Bartley, however, qualified as a career offender under U.S.S.G. §
4B1.1, which subjected him to an enhanced offense level of 31 and a sentencing
guideline range of 188 to 235 months’ imprisonment. The district court sentenced
Mr. Bartley to 211 months’ imprisonment.
On August 23, 2012, Mr. Bartley filed a § 3582(c)(2) motion for a sentence
reduction based on Amendment 750 to the Sentencing Guidelines and the Fair
Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2374 (2010). The district
court denied Mr. Bartley’s motion because he was sentenced “as a career offender
pursuant to U.S.S.G. § 4B1.1, and as such, his applicable sentencing guideline
range is not affected by Amendment 750.” D.E. 72 at 1. See also D.E. 74 (holding
that Fair Sentencing Act did not apply to Mr. Bartley’s case). This appeal
followed.
“In a § 3582(c)(2) proceeding, ‘we 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). Under § 3528(c)(2),
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a district court may reduce the terms of a defendant’s imprisonment if the sentence
was based on a sentencing range that has subsequently been lowered by the
Sentencing Commission. If, however, “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.” Moore, 541 F.3d at 1330.
In this case, Mr. Bartley was not eligible for a reduced sentence because he
was sentenced as a career offender under § 4B1.1. His sentencing guidelines
remained unchanged because § 4B1.1 was not affected by Amendment 750. See id.
at 1327 (holding that defendants sentenced as career offenders under § 4B1.1 are
not entitled to sentence reductions based on an amendment to the base offense
levels for crack cocaine offenses in § 2D1.1). Mr. Bartley is also not entitled to
relief under the Fair Sentencing Act for two reasons. First, the Fair Sentencing Act
is not a guidelines amendment by the Sentencing Commission and, therefore,
cannot be the basis for a sentence reduction under § 3582(c)(2). See United States
v. Berry, 701 F.3d 374, 377 (11th Cir. 2012). Second, Mr. Bartley was sentenced
before the effective date of the act, which is not retroactively applicable to him.
See id. (“We agree with every other circuit to address the issue that there is ‘no
evidence that Congress intended [the FSA] to apply to defendants who had been
sentenced prior to the August 3, 2010 date of the Act's enactment.’”) (citation
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omitted). See also United States v. Hippolyte, ___ F.3d ___, ___, 2013 WL
978695, at *5 (11th Cir. Mar. 14, 2013) (same). Therefore, the district court
correctly denied Mr. Bartley’s § 3582(c)(2) motion.
AFFIRMED.
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