Case: 12-12596 Date Filed: 04/18/2014 Page: 1 of 11
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12596
________________________
D.C. Docket No. 6:01-cr-00089-JA-GJK-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMORY LEE TELLIS,
a.k.a. Emmit,
a.k.a. Fat Head,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 18, 2014)
Before MARTIN and HILL, Circuit Judges, and FULLER, * District Judge.
*
Honorable Mark E. Fuller, United States District Judge for the Middle District of Alabama,
sitting by designation.
Case: 12-12596 Date Filed: 04/18/2014 Page: 2 of 11
MARTIN, Circuit Judge:
Emory Lee Tellis is currently serving a 188-month sentence after pleading
guilty to conspiracy to sell crack cocaine. In this appeal he challenges the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based on
Amendment 750 to the United States Sentencing Guidelines (USSG). After a
careful review of the parties’ briefs and the relevant caselaw, and with the benefit
of oral argument, we affirm.
I. FACTS AND PROCEDURAL HISTORY
A. INITIAL SENTENCING
In June 2001, Mr. Tellis was indicted for conspiracy to sell crack cocaine in
violation of 21 U.S.C. § 841(a)(1). He pleaded guilty on October 2, 2001.
Mr. Tellis’s Presentence Investigation Report (PSR) was completed in
January 2002. The PSR stated that he was a career offender as defined in USSG
§ 4B1.1. Mr. Tellis did not object to the PSR’s designation of him as a career
offender. His offense level was 37 under the career offender table in USSG
§ 4B1.1.1 Because of the amount of crack involved, Mr. Tellis’s base offense level
was 38 under the drug quantity table in USSG § 2D1.1. The offense level for a
career offender is the higher value calculated using USSG §§ 2D1.1 and 4B1.1.
1
The Probation Office’s calculation of Mr. Tellis’s career offender offense level assumed he
would not receive any reduction for acceptance of responsibility.
2
Case: 12-12596 Date Filed: 04/18/2014 Page: 3 of 11
See USSG § 4B1.1(b). Thus, the PSR stated that “since the adjusted offense level
is 38, career offender status does not impact the total offense level.”
Based upon an offense level of 38, the PSR calculated the guideline
imprisonment range as 360 months to Life. Before sentencing, the United States
moved pursuant to USSG § 5K1.1 for a three-level reduction based on Mr. Tellis’s
“substantial assistance.” If the district court had adopted the offense level of 38
and applied the three-level reduction for substantial assistance, Mr. Tellis’s offense
level would have been 35 and his guideline range would have been 292 to 365
months. With an additional three-level reduction for acceptance of responsibility,
his offense level would have been 32 and his guideline range 210 to 262 months.
Mr. Tellis appeared for sentencing in the district court on January 15, 2002.
The sentencing hearing was not transcribed, and the court reporter’s notes have
been destroyed. The parties here agree that Mr. Tellis received a three-level
reduction pursuant to USSG § 3E1.1 for accepting responsibility. We also know
that the motion to recognize Mr. Tellis’s substantial assistance was granted and
based on that, he received an additional three-level reduction. Ultimately Mr.
Tellis was sentenced to 210-months imprisonment, which was the low end of the
range for an offense level of 32—a base level of 38 under USSG § 2D1.1 minus
six points for the substantial assistance and acceptance of responsibility reductions.
B. FIRST MODIFICATION MOTION
3
Case: 12-12596 Date Filed: 04/18/2014 Page: 4 of 11
On November 1, 2007, the Sentencing Commission promulgated
Amendment 706. USSG App. C, Amend. 706 (2007). “The effect of Amendment
706 is to provide a two-level reduction in base offense levels for crack cocaine
offenses.” United States v. Moore,
541 F.3d 1323, 1325 (11th Cir. 2008). On
March 3, 2008, the Commission made Amendment 706 retroactively applicable.
USSG App C., Amend. 713 (2008). Therefore, following the adoption of these
Amendments Mr. Tellis’s base offense level under USSG § 2D1.1 was lowered
from 38 to 36 given the amount of crack involved in this case.
Also on March 3, 2008, the Commission revised its policy statement in
§ 1B1.10. It said that a defendant is not eligible for a sentence reduction where an
amendment “does not have the effect of lowering [his] applicable guideline range
because of the operation of another guideline or statutory provision.” USSG
§ 1B1.10, cmt. 1(A). To receive sentencing relief under § 3582(c)(2), the
Amendment relied upon must lower the “applicable guideline range.”
Id. The
Commission defined the applicable guideline range as “the guideline range that
corresponds to the offense level and criminal history category determined pursuant
to [USSG §] 1B1.1(a), which is determined before consideration of any departure
provision in the Guidelines Manual or any variance.”
Id.
In May 2008, the district court ordered a supplemental PSR to establish
whether, in light of Amendment 706 and USSG § 1B1.10, Mr. Tellis’s original
4
Case: 12-12596 Date Filed: 04/18/2014 Page: 5 of 11
sentence should be reduced. One week later, Mr. Tellis moved for a modification
of his sentence pursuant to Amendment 706.
In its response to the district court order, the Probation Office stated that the
base offense level for Mr. Tellis under Amendment 706 in light of the amount of
drugs involved would be 36. “However,” it continued, “pursuant to the career
offender provisions of USSG § 4B1.1, the offense level is enhanced to 37, and with
a 3 level reduction for acceptance of responsibility, the total offense level becomes
34.” Applying the three-level reduction pursuant to substantial assistance as before
would then result in an offense level of 31, which has an imprisonment range of
188 to 235 months. Thus, to reach the offense level of 31, the Probation Office
relied on the career offender offense level in USSG § 4B1.1 as a starting point.
On July 18, 2008, Mr. Tellis and the United States filed a joint stipulation.
They noted that the supplemental PSR “correctly states that, pursuant to 18 U.S.C.
§ 3582(c)(2), the defendant is eligible for a reduction in his previously-imposed
term of imprisonment.” It added that the PSR is also correct that:
pursuant to USSG § 1B1.10, the retroactive application
of Amendments 706 and 711 . . . makes the defendant
eligible for a reduction in his sentence to a total term of
imprisonment of 188 months. Therefore, pursuant to 18
U.S.C. § 3582(c)(2), the Court may adjust the
defendant’s previously-imposed sentence by reducing it
by up to 22 months.
5
Case: 12-12596 Date Filed: 04/18/2014 Page: 6 of 11
On August 19, 2008, the district court reduced Mr. Tellis’s sentence to a term of
188 months.
C. SECOND MODIFICATION MOTION
In November 2011, the Commission promulgated Amendment 750. This
Amendment “revised the crack cocaine quantity tables in U.S.S.G. § 2D1.1 to
conform to the Fair Sentencing Act of 2010.” United States v. Glover,
686 F.3d
1203, 1204 (11th Cir. 2012). Later, Amendment 750 was also made retroactive,
allowing sentence reductions under 18 U.S.C. § 3582(c)(2). USSG App. C,
Amend. 759. Base offense levels were lowered for certain quantities of crack
cocaine offenses, and following the adoption of Amendment 750 Mr. Tellis’s base
offense level under USSG § 2D1.1 was 34 instead of 38 originally, or 36 after
Amendment 706. USSG App. C, Amend. 759 (2011); USSG § 2D1.1(c)(3).
On November 10, 2011, Mr. Tellis moved to reduce his sentence pursuant to
Amendment 750. The district court requested another supplemental PSR. This
time Probation stated that Mr. Tellis was “not eligible for a sentence reduction
because he was sentenced as a career offender.” The government opposed Mr.
Tellis’s motion, arguing that:
[w]hen the Court applied Amendment 706 in 2008, the
offense level under the career offender guideline became
the higher of the two and the Court reduced the
defendant’s sentence in accordance with the new range as
dictated by the career offender guideline. . . . When the
reduction under Amendment 750 is applied and the
6
Case: 12-12596 Date Filed: 04/18/2014 Page: 7 of 11
amended base offense level is substituted for the original
base offense level under the drug quantity table, the
career offender level remains the higher of the two and,
therefore, the guidelines range remains the same as in
2008.
Mr. Tellis maintained “that the career offender guideline was not applied at his
original sentencing, and thus cannot be applied in these proceedings.”
The district court denied Mr. Tellis’s motion to reduce under Amendment
750, stating: “Defendant is not, however, eligible for further reduction because his
career offender guideline range is now greater than the drug offense level.” Mr.
Tellis timely appealed.
II. ANALYSIS
After a person is sentenced, a district court may modify their sentence in
only limited situations. One of those situations is set forth in 18 U.S.C.
§ 3582(c)(2):
[I]n 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 . . . the court may reduce the term of
imprisonment, after considering the factors set forth in
section 3553(a) to the extent that they are applicable, if
such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.
This Court reviews de novo a district court’s conclusions about the scope of
its legal authority under 18 U.S.C. § 3582(c)(2). United States v. Lawson,
686
F.3d 1317, 1319 (11th Cir. 2012), cert. denied
133 S. Ct. 568 (2012). We review
7
Case: 12-12596 Date Filed: 04/18/2014 Page: 8 of 11
the factual findings underlying the district court’s legal conclusions for clear error.
United States v. Davis,
587 F.3d 1300, 1303 (11th Cir. 2009). A defendant bears
the burden of demonstrating that a retroactive Amendment has actually lowered his
guideline range. United States v. Hamilton,
715 F.3d 328, 337 (11th Cir. 2013).
A. DISCUSSION OF RECORD
Although Mr. Tellis argues that the record does not conclusively establish
that he was considered to be a career offender, the record contradicts this claim.
The January 2002 PSR stated explicitly that Mr. Tellis was a career offender. The
United States has advised us that the June 2008 PSR also designated Mr. Tellis as a
career offender, and Tellis has not disputed this. The district court noted this again
in denying Mr. Tellis’s Amendment 750 motion, stating that he “was determined to
be a career offender” when he appeared in 2002. And in 2008 Mr. Tellis stipulated
to a sentence modification that was calculated based on his career offender status.
Mr. Tellis next argues that because his original sentence was based on drug
quantity, rather than the career offender guideline range, relying on the career
offender provisions now “would constitute a re-sentencing proceeding as opposed
to a modification proceeding.” But this ignores what happened when the district
court considered Mr. Tellis’s Amendment 706 motion, and why. When
considering Mr. Tellis’s first motion to reduce his sentence, the district court had to
consider “not only whether the amendment reduced his drug quantity base offense
8
Case: 12-12596 Date Filed: 04/18/2014 Page: 9 of 11
level, but also its determination at his original sentencing that [he] was a career
offender.” United States v. Moreland, 355 F. App’x 376, 378 (11th Cir. 2009) (per
curiam). The district court did so, and so was required to modify Mr. Tellis’s
sentence based on his career offender status.
Because Mr. Tellis’s Amendment 706 modification properly resulted from
his career offender status, the district court did not err in denying his motion to
modify his sentence pursuant to Amendment 750. In light of Mr. Tellis’s status as
a career offender, Amendment 750 did not lower his offense level after the
Amendment 706 modification, and thus did not alter the guideline range. For that
reason, the district court correctly concluded that it had no discretion to lower his
sentence.
We have affirmed similar results in several unpublished cases. See, e.g.,
United States v. Florence, 503 F. App’x 796, 797–99 (11th Cir. 2013) (per curiam)
(affirming district court’s guideline range modification pursuant to § 4B1.1
although defendant originally sentenced pursuant to § 2D1.1); United States v.
Hobbs, 491 F. App’x 113, 115 (11th Cir. 2012) (per curiam) (affirming district
court’s determination it lacked discretion to modify pursuant to Amendment 750
after career offender was originally sentenced based on drug quantity table and had
sentence reduced pursuant to Amendment 706 because “in light of his designation
as a career offender, Amendment 750 did not operate to lower his applicable
9
Case: 12-12596 Date Filed: 04/18/2014 Page: 10 of 11
Guidelines range”). See also United States v. Hubbard, 508 F. App’x 561, 562
(7th Cir. 2013) (rejecting argument that applying career offender guideline in
sentence modification pursuant to Amendment 750 after initially sentencing based
on drug quantity table is a resentencing). Mr. Tellis has not persuaded us that these
decisions should have been decided differently.
B. FREEMAN DID NOT OVERRULE MOORE
Finally, neither are we persuaded by Mr. Tellis’s argument that Freeman v.
United States,
131 S. Ct. 2685 (2011), has undermined our decision in Moore. In
Moore, this Court held that a retroactive guideline amendment does not trigger 18
U.S.C. § 3582(c)(2) when a sentence was based on the career offender guideline
and the amendment does not alter the guideline
range. 541 F.3d at 1330. Mr.
Tellis argues that Moore was called into question by Freeman, where the Supreme
Court examined a § 3582(c)(2) petition filed after the Commission adopted
Amendment 706. No opinion received a majority of the Court in Freeman, and it
did not address USSG § 4B1.1. Rather, the case addressed whether defendants
who entered into a plea agreement pursuant to Federal Rule of Criminal Procedure
11(c)(1)(c) were eligible for § 3582(c)(2)
relief. 131 S. Ct. at 2690.
Mr. Tellis argues that “the reasoning and holding in Moore was undermined
to the point of abrogation by the subsequent Supreme Court decision in Freeman.”
This Court has rejected that argument in Lawson and many cases since. See, e.g.,
10
Case: 12-12596 Date Filed: 04/18/2014 Page: 11 of 11
Lawson, 686 F.3d at 1321 (“Moore remains binding precedent because it has not
been overruled.”). Mr. Tellis argues Lawson is distinguishable from his case
because he was not sentenced within the career offender guideline range at his
initial sentencing. But the key is whether Mr. Tellis’s term of imprisonment is
based on the career offender guideline. Because Mr. Tellis’s modification in 2008
was based on his career offender status, it is, and therefore Moore controls.
III. CONCLUSION
For the reasons above, we affirm the district court’s order.
11
