USA v. Osborne Cockett

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14934
Non-Argument Calendar
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D.C. Docket No. 3:09-cr-00361-HES-JRK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSBORNE COCKETT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(July 19, 2016)
Before MARCUS, WILLIAM PRYOR and JULIE CARNES, Circuit Judges.
PER CURIAM:
Osborne Cockett, appealing pro se, appeals the district court’s denial of his
18 U.S.C. § 3582(c)(2) motion for a sentence reduction. On appeal, Cockett
argues that, despite his career-offender designation, he is eligible for a reduction
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because the district court fashioned his sentence based on his non-career-offender
guideline range. After careful review, we affirm.
We review de novo the district court’s legal conclusions regarding the scope
of its authority under 18 U.S.C. § 3582(c)(2) and for clear error the factual findings
underlying those legal conclusions. United States v. Davis, 587 F.3d 1300, 1303
(11th Cir. 2009). Pursuant to § 3582(c)(2), a district court may reduce a
defendant’s term of imprisonment if: (1) the defendant’s sentence was based upon
a guideline range that the Sentencing Commission subsequently lowered; and (2) a
reduction is consistent with applicable policy statements issued by the Sentencing
Commission. 18 U.S.C. § 3582(c)(2). A reduction is not consistent with the
Guidelines’ policy statement if the amendment does not have the effect of lowering
the defendant’s applicable guideline range. U.S.S.G. § 1B1.10(a)(2)(B). The
“applicable guideline range” is the range “determined before consideration of any
departure provision in the Guidelines Manual or any variance.” Id. § 1B1.10,
comment. (n.1). “[C]ommentary in the Guidelines Manual that interprets or
explains a guideline is authoritative unless it violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”
Stinson v. United States, 508 U.S. 36, 38 (1993).
In order to obtain a reduction in a term of imprisonment based on an
amendment to the Sentencing Guidelines, the relevant amendment must be listed in
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§ 1B1.10(d). See U.S.S.G. § 1B1.10(a)(1). Amendment 782 -- which is listed in §
1B1.10(d) -- therefore may serve as the basis for a sentence reduction. Id. §
1B1.10(d). Amendment 782 reduced by two levels the base offense levels that
apply to most drug offenses in § 2D1.1. See U.S.S.G. App. C, Amend. 782 (2014).
We’ve explained that § 3582(c)(2) only authorizes a reduction to sentences
that were “based on” sentencing ranges that were subsequently lowered. United
States v. Moore, 541 F.3d 1323, 1327 (11th Cir. 2008). Thus, because the
defendants in Moore were sentenced as career offenders under § 4B1.1, they were
ineligible for relief, since only their base offense levels, but not their guideline
ranges, were impacted by the retroactive guideline amendment. Id. at 1327-30.
In this case, the district court did not have the authority to reduce Cockett’s
sentence pursuant to § 3582(c)(2). Section 3582(c)(2) allows a sentence reduction
only if it is consistent with the applicable policy statement of the Sentencing
Guidelines. 18 U.S.C. § 3582(c)(2). The policy statement in § 1B1.10 requires a
court to determine the amended guideline range that would have been applicable to
the defendant if the amendment had been in effect at the time of sentencing.
U.S.S.G. § 1B1.10(b)(1). In Cockett’s case, that range is the career offender range.
Therefore, regardless of whether the district court based Cockett’s final variant
sentence, in part, on the guideline range that would have been applicable if he was
not a career offender, Cockett is a career offender and the guideline range
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applicable to Cockett has not been reduced by Amendment 782. U.S.S.G. §
1B1.10(a)(2)(B).
As for Cockett’s reliance on Freeman v. United States, 564 U.S. 522 (2011),
we are unpersuaded. There, a four-justice plurality of the Supreme Court
concluded that a defendant sentenced pursuant to a particular sentencing
recommendation in his Fed. R. Crim. P. 11(c)(1)(C) plea agreement typically
would still be eligible for relief under § 3582(c)(2). The plurality reached this
conclusion on the ground that, before a district court imposes a recommended
sentence, it is required to consider whether the sentence is reasonable in light of the
applicable guideline range. See Freeman, 564 U.S. at 530-34. In a concurring
opinion, however, Justice Sotomayor noted that, typically, a defendant sentenced
pursuant to a particular sentencing recommendation in his plea agreement is not
eligible for relief under § 3582(c)(2) because the recommended sentence is based
on the agreement itself, and not on the applicable guideline range. Id. at 534. She
recognized, on the other hand, that where an agreement expressly uses the
guideline range applicable to the charged offense to establish the term of
imprisonment, the term of imprisonment is based on the guideline range. In those
cases, she concluded, the defendant would be eligible for relief under § 3582(c)(2).
Id. We’ve said that this narrower concurring opinion can be viewed as the holding
of Freeman. United States v. Lawson, 686 F.3d 1317, 1321 n.2 (11th Cir. 2012).
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Regardless of its precise holding, we’ve made clear that Freeman did not
overrule Moore. Id. We’ve also held that Freeman is inapplicable to the issue of
whether a district court has authority to reduce a sentence in the case of a
defendant sentenced as a career offender. Id. at 1320-21. Freeman, therefore, did
not alter the analysis we use in cases like Cockett’s. See id. Accordingly, he is not
entitled to relief under § 3582(c)(2), and we affirm.
AFFIRMED.
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