USA v. Kenneth Jackson, No. 12-11497 (11th Cir. 2012)
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Case: 12-11497 Date Filed: 08/20/2012 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _________________________ No. 12-11497 Non-Argument Calender __________________________ D.C. Docket No. 0:98-cr-06229-DTKH-1 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus KENNETH JACKSON, Defendant - Appellant. __________________________ Appeal from the United States District Court for the Southern District of Florida ___________________________ (August 20, 2012) Before CARNES, HULL and MARTIN, Circuit Judges. PER CURIAM: Kenneth Jackson pleaded guilty to one count of possession with intent to Case: 12-11497 Date Filed: 08/20/2012 Page: 2 of 3 distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). The presentence investigation report concluded that he was a career offender under United States Sentencing Guidelines § 4B1.1 (Nov. 1998). Because Jackson was a career offender and the offense carried a maximum life sentence, the PSR recommended a base offense level of 37. See id. § 4B1.1(A). After a 3-level reduction for acceptance of responsibility, see id. § 3E1.1, Jackson s total offense level was 34. As a career offender, Jackson s criminal history category was VI. See id. § 4B1.1. The result was a guidelines range of 262 to 327 months in prison. The district court adopted the PSR and sentenced Jackson to 262 months imprisonment. Jackson filed a pro se motion to reduce his sentence under 18 U.S.C. § 3582(c)(2), contending that Amendment 750 to the guidelines had reduced his guidelines range. The district court denied Jackson s motion, concluding that it lacked authority to reduce Jackson s sentence because he had been sentenced under the career offender guideline. This is Jackson s appeal. The district court did not err in denying Jackson s § 3582(c)(2) motion. In United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008), we held that [w]here a retroactively applicable guideline amendment reduces a defendant s [otherwise applicable] base offense level, but does not alter the [career offender] sentencing range upon which his or her sentence was based, § 3582(c)(2) does not 2 Case: 12-11497 Date Filed: 08/20/2012 Page: 3 of 3 authorize a reduction in sentence. Moore controls here. Amendment 750 reduced the base offense levels for crack cocaine trafficking crimes, but it did not reduce the offense level for a career offender subject to a maximum life sentence. For that reason, Amendment 750 did not lower Jackson s career offender guidelines range, so the district court is not authorized to reduce his sentence under § 3582(c)(2). See Moore, 541 F.3d at 1330; see also United States v. Glover, F.3d , No. 12-10580, 2012 WL 2814303, at *3 (11th Cir. July 11, 2012) ( [Section 3582(c)(2)], the Sentencing Commission s corresponding policy statement, and the commentary to that policy statement all make it clear that a court cannot use an amendment to reduce a sentence in a particular case unless that amendment actually lowers the guidelines range in that case. It is that simple. ). Jackson argues that the Supreme Court s decision in Freeman v. United States, 564 U.S. , 131 S.Ct. 2685 (2011), abrogated our decision in Moore, but we have already rejected that argument in another case. See United States v. Lawson, F.3d , No. 11 15912, 2012 WL 2866265, at *2 3 (11th Cir. July 13, 2012). AFFIRMED. 3
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