            Case: 15-12786   Date Filed: 01/07/2016   Page: 1 of 5


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-12786
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:13-cr-20631-UU-12



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

MANUEL BAUTISTA ALVAREZ,
a.k.a. Manuel Bautista,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (January 7, 2016)

Before ED CARNES, Chief Judge, TJOFLAT, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Manuel Bautista Alvarez appeals the district court’s denial of his motion for

a reduced sentence. His motion was based on Amendment 782 to the guidelines,

which lowered the base offense level for the drug offenses for which Alvarez was

convicted. The district court correctly denied Alvarez’s motion because, although

Amendment 782 lowered the base offense level for the offenses of conviction, it

had no effect on Alvarez’s sentence under the guidelines.

      Alvarez pleaded guilty to violating 21 U.S.C. §§ 841(a)(1) and 846 by

conspiring, with several codefendants, to possess more than 500 grams of cocaine

with intent to distribute it. The presentence investigation report (PSR) stated that

his base offense level was 26 under U.S.S.G. § 2D1.1, but set his offense level at

34 because Alvarez qualified as a career offender under U.S.S.G. § 4B1.1. It then

deducted three levels from that number for acceptance of responsibility, resulting

in a total offense level of 31. Pairing Alvarez’s total offense level with his

criminal history category of VI, the PSR calculated his guidelines range to be 188

to 235 months in prison.

      At sentencing Alvarez objected to being classified as a career offender. The

district court overruled his objection and expressly adopted the PSR’s guidelines

calculations. In light of the much lower sentences Alvarez’s codefendants had

received, however, the district court decided that a within-guidelines sentence

would be excessive. It asked the probation officer what Alvarez’s guidelines range


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would have been had he not been a career offender, and the probation officer

responded that it would have been 46 to 57 months in prison. After noting that the

career-offender enhancement made the low end of Alvarez’s guidelines range four

times higher than it otherwise would have been, the district judge announced: “I’m

not going to sentence him as a career offender as a matter of variance, not as a

guideline departure, but as a matter of variance. I think that would be excessive. I

think it would be unreasonably disparate as to the codefendants.” The court

ultimately imposed a sentence of 72 months in prison, followed by 96 months of

supervised release.

      After the court imposed the sentence, the U.S. Sentencing Commission

promulgated Amendment 782, which effected a two-level reduction in the base

offense level for most of the offenses covered by the drug quantity table in

§ 2D1.1(c). After Amendment 782 was made retroactive, Alvarez moved, under

18 U.S.C. § 3582(c)(2), to reduce his sentence. He argued that Amendment 782

reduced his base offense level under § 2D1.1, and that the reduction meant a lower

guidelines range in his case. The district court denied that motion on the ground

that Alvarez’s “offense level was determined based on his status as a career

offender,” so that his guidelines range in no way depended on his base offense

level under § 2D1.1.




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      “Where a retroactively applicable guidelines amendment reduces a

defendant’s base offense level, but does not alter the sentencing range upon which

his or her sentence was based, § 3582(c)(2) does not authorize a reduction in

sentence.” United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008); see also

U.S.S.G. § 1B1.10(a)(2)(B) (saying essentially the same thing). Amendment 782

amended only the drug quantity table in § 2D1.1(c). Thus, unless Alvarez’s

sentence was at least partly predicated on that table, § 3582(c)(2) does not

authorize a reduction in his sentence.

      Alvarez’s sentence was not based on the drug quantity table in § 2D1.1(c).

The district court formally adopted the PSR, which calculated Alvarez’s sentence

by applying the career offender guideline in § 4B1.1, instead of the regular drug

offender guideline in § 2D1.1. The district court’s decision to vary from that

guideline in imposing the sentence does not mean the court applied some other

guideline; that is not what a variance entails. When a sentencing court varies from

a range calculated under a guideline, it does so, not by applying a different

guideline, but by applying the factors from 18 U.S.C. § 3553(a) to the original

guidelines calculation. See United States v. Irizarry, 458 F.3d 1208, 1211–12

(11th Cir. 2006). Thus, the fact that the district court applied a variance in

calculating Alvarez’s sentence does not change the fact that his guidelines range

was fixed under § 4B1.1(a), rather than § 2D1.1. Amendment 782 thus had no


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effect on his guidelines range, meaning § 3582(c)(2) does not authorize a reduction

in his sentence.

      AFFIRMED.




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