USA v. Nick Ferrer

Filing

Opinion issued by court as to Appellant Nick Ferrer. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-10276

Date Filed: 09/30/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10276
Non-Argument Calendar
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D.C. Docket No. 1:93-cr-00080-PAS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NICK FERRER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 30, 2016)
Before HULL, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Nick Ferrer, proceeding pro se, appeals the district court’s denial of his
motion to reduce his sentence, pursuant to 18 U.S.C. § 3582(c)(2), based on

Case: 16-10276

Date Filed: 09/30/2016

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Amendment 782 to the Sentencing Guidelines. On appeal, Ferrer argues that he is
eligible for a reduction under Amendment 782, even though he was sentenced as a
career offender under U.S.S.G. § 4B1.1, because his guideline range was actually
supplied by the drug guidelines in § 2D1.1. As such, he asserts that Amendment
782 lowers his applicable guideline range. He further contends that our precedent
to the contrary has been abrogated by the Supreme Court’s decision in Freeman v.
United States, 564 U.S. 522, 131 S. Ct. 2685 (2011).
We review the district court’s conclusions about the scope of its legal
authority under § 3582(c)(2) de novo. United States v. Colon, 707 F.3d 1255,
1258 (11th Cir. 2013).
A district court may modify a defendant’s term of imprisonment if the
defendant was sentenced based on a sentencing range that has subsequently been
lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Any reduction,
however, must be consistent with the Sentencing Commission’s policy statements.
Id. When the district court considers a § 3582(c)(2) motion, it must first
recalculate the guideline range under the amended Guidelines. United States v.
Bravo, 203 F.3d 778, 780 (11th Cir. 2000). When recalculating the guideline
range, it can only substitute the amended guideline and must keep intact all other
Guidelines decisions made during the original sentencing. Id. A defendant is
eligible for a sentence reduction under § 3582(c)(2) when an amendment listed in
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U.S.S.G. § 1B1.10(d) lowers his guideline range as calculated by the sentencing
court prior to any departure or variance. U.S.S.G. § 1B1.10(a)(1); id., cmt. n.1(A).
Amendment 782 provides a 2-level reduction in the base offense levels for
most drug quantities listed in the Drug Quantity Table in U.S.S.G. § 2D1.1(c).
U.S.S.G. App. C, amend. 782. A district court is not authorized to reduce a
defendant’s sentence under § 3582(c)(2) where a retroactively applicable
Guidelines amendment reduces his base offense level but does not alter the
guideline range upon which his sentence was based. United States v. Moore, 541
F.3d 1323, 1330 (11th Cir. 2008). Specifically, when a drug offender is sentenced
under the career-offender guideline in § 4B1.1, the guideline range upon which his
sentence is based is calculated from § 4B1.1, not § 2D1.1. United States v.
Lawson, 686 F.3d 1317, 1321 (11th Cir. 2012). Because an amendment to § 2D1.1
does not affect a career offender’s guideline range, he is ineligible for a sentence
reduction under § 3582(c)(2) based on an amendment to that guideline. Id.
(affirming the denial of a sentence reduction under Amendment 750 to the
Sentencing Guidelines).
Upon a review of the record and consideration of the parties’ briefs, we
affirm.
The district court did not err by denying Ferrer’s motion for a sentence
reduction because Amendment 782 did not lower his guideline range, as Ferrer’s
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total offense level and criminal history category were determined by the careeroffender guideline in § 4B1.1, not the drug guideline in § 2D1.1. See Lawson, 686
F.3d at 1321. Further, we have expressly rejected the argument that Freeman
overruled Moore and have reaffirmed that Moore continues to be binding
precedent. See id. at 1320-21. Therefore, the district court correctly concluded
that Ferrer was ineligible for a sentence reduction based on Amendment 782.
AFFIRMED.

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