USA v. Clarence Shamein Fitzgerald

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 12, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-14676
Non-Argument Calendar
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D. C. Docket No. 04-00288-CR-T-26-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLARENCE SHAMEIN FITZGERALD,
a.k.a. Jermaine,
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, 2010)
Before MARCUS, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Clarence Shamein Fitzgerald appeals the district court’s order denying his
18 U.S.C. § 3582(c)(2) motion for a sentence reduction based on Amendment 706

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to the Sentencing Guidelines. On appeal, Fitzgerald: (1) concedes that he was
originally sentenced as a career offender, but asserts that career offenders are not
precluded from receiving sentence reductions under Amendment 706, and that our
decision in United States v. Moore, 541 F.3d 1323 (11th Cir. 2008), cert. denied,
McFadden v. United States, 129 S.Ct. 965 (2009), and cert. denied, 129 S. Ct. 1601
(2009), was wrongly decided; and (2) argues for the first time on appeal that
Congress’s failure to amend the Sentencing Guidelines to reduce the disparity
between crack and powder cocaine offenses violates the equal protection
component of the Due Process Clause of the Fifth Amendment. After thorough
review, we affirm.
“We review 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. James, 548 F.3d
983, 984 (11th Cir. 2008).
Section 3582(c)(2) gives federal courts the authority to consider reducing the
sentence “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.” 18 U.S.C. § 3582(c)(2). In Moore, we held that defendants
sentenced under the career offender guideline, U.S.S.G. § 4B1.1(b), are ineligible
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for sentence reductions under Amendment 706 because that amendment did not
have the effect of reducing their guideline range. Moore, 541 F.3d at 1327-30.
Fitzgerald was originally sentenced under the career offender guideline,
U.S.S.G. § 4B1.1(b). Therefore, in light of our decision in Moore, he was not
eligible for a sentence reduction under Amendment 706. Although Fitzgerald
asserts that Moore was wrongly decided, we are bound by our prior holding until it
is overruled by the Supreme Court or by a panel of this Court sitting en banc. See
United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). Because Fitzgerald
was sentenced as a career offender, the district court correctly concluded that he
was not eligible for a sentence reduction based on Amendment 706.
As for Fitzgerald’s equal protection argument, we have explained that a §
3582(c)(2) proceeding “does not constitute a de novo resentencing” and does not
permit the district court to address “extraneous resentencing issues” such as
constitutional claims. United States v. Bravo, 203 F.3d 778, 781-82 (11th Cir.
2000) (holding that the district court properly declined to consider defendant’s
Eighth Amendment claim in the context of a § 3582(c)(2) proceeding).
Accordingly, the district court did not plainly err by failing to sua sponte grant a
sentence reduction on equal protection grounds.
AFFIRMED.
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