              Case: 15-10608     Date Filed: 01/14/2016   Page: 1 of 6


                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 15-10608
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 2:97-cr-00026-DHB-RSB-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

BILLY GUYTON, SR.,

                                                              Defendant-Appellant.

                           ________________________

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

                                (January 14, 2016)

Before MARCUS, WILSON and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Billy Guyton, Sr., proceeding pro se, appeals the district court’s denial of his

18 U.S.C. § 3582(c)(2) motion to reduce his 384-month sentence pursuant to

Amendment 782 of the Sentencing Guidelines and the district court’s denial of his
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motion to appoint counsel, after a jury found him guilty of: (1) conspiracy to

distribute crack, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and 846;

(2) distribution of crack, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1);

and (3) traveling in interstate commerce to promote unlawful activity, in violation

of 18 U.S.C. §§ 2 and 1952(a)(3). Prior to filing this § 3582 motion based on

Amendment 782, Guyton filed a previous § 3582 motion in 2011 based on

Amendment 750. In denying that motion, the district court determined, based on

the presentence investigation report (“PSI”), that Guyton was responsible for

between 120 and 288 kilograms of crack cocaine, and, thus, was ineligible for a

sentence reduction since Amendment 750 did not change his guideline range. We

vacated and remanded on appeal, concluding that Guyton had disputed the PSI fact

that he was responsible for 120 to 288 kilograms of crack cocaine, and the district

court therefore erred by relying on it. United States v. Guyton, 550 F. App’x 796,

799-800 (11th Cir. 2013) (unpublished). On remand, the district court found that

the trial evidence supported a finding of 6.0376 kilograms of crack cocaine and 4

kilograms of powder cocaine. However, the district court held that Guyton was not

entitled to a further reduction of his total sentence, because, even with the lesser

drug quantity, Amendment 750 did not lower his guideline range. We affirmed.

United States v. Guyton, 596 F. App’x 873 (11th Cir. 2015) (unpublished).




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      Guyton then filed the instant § 3582 motion, which the district court denied

on the ground that that his presentence investigation report (“PSI”) reflected that

he had distributed 120 to 288 kilograms of crack cocaine. On appeal, Guyton

argues that: (1) he qualifies under Amendment 782 for a reduction or modification

of his total sentence; and (2) he has a right to be represented by an attorney. The

government concedes that the district court erred in denying Guyton’s § 3582

motion. After careful review, we affirm in part, and vacate and remand in part.

      We review de novo a district court’s legal conclusions about the Sentencing

Guidelines and the scope of its authority under § 3582(c)(2). United States v.

Liberse, 688 F.3d 1198, 1200 n.1 (11th Cir. 2012). We review factual findings

underlying the district court’s legal conclusions only for clear error. Id. We

review the existence of right to counsel in a § 3582(c)(2) proceeding de novo, and

the district court’s decision not to appoint counsel for abuse of discretion. United

States v. Webb, 565 F.3d 789, 793 (11th Cir. 2009).          A concession by the

government can be considered, especially if supported by the law and facts. See

Lobosco v. Thomas, 928 F.2d 1054, 1060 (11th Cir. 1991).

      Under 18 U.S.C. § 3582(c)(2), a district court may modify a term of

imprisonment that was based on a sentencing range that has subsequently been

lowered by the Sentencing Commission. Amendment 782 revised the guidelines

applicable to drug-trafficking offenses by changing how the base offense levels in


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the Drug Quantity Table in § 2D1.1(c) incorporate the statutory mandatory

minimum penalties for those offenses. U.S.S.G. App. C, Amend. 782. In a prior

version of § 2D1.1(c), a base offense level of 36 applied if the defendant’s offense

involved at least 2.8 kilograms but less than 8.4 kilograms of cocaine base.

U.S.S.G. § 2D.1.1(c)(2) (2013). In the amended version of § 2D1.1(c), a base

offense level of 34 applies if the defendant’s offense level involved at least 2.8

kilograms but less than 8.4 kilograms of cocaine base. U.S.S.G. § 2D1.1(c)(3).

      In this appeal, the district court erred in denying Guyton’s § 3582(c)(2)

motion based on Amendment 782, as the government correctly notes. As the

record shows, the district court relied on the finding in the PSI that Guyton

distributed 120 to 288 kilograms of crack cocaine. However, in Guyton’s appeal

from the denial of his 2011 § 3582 motion, we rejected the district court’s reliance

on the disputed PSI facts regarding the quantity of crack cocaine for which Guyton

was responsible.    The district court subsequently made a factual finding that

Guyton was responsible for 6.0376 kilograms of crack cocaine and 4 kilograms of

powder cocaine, and we affirmed the denial of Guyton’s 2011 § 3582 motion

based on that quantity finding. Because the district court’s later finding that

Guyton distributed 6.0376 kilograms of crack cocaine differed from the disputed

PSI fact that he was responsible for 120 to 288 kilograms of crack cocaine, the

district court’s reliance on the disputed PSI fact was clear error.


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      Furthermore, Guyton would be at least eligible for a reduction based on the

district court’s factual finding that 6.0376 kilograms of crack cocaine was involved

in Guyton’s offenses. While offenses involving at least 2.8 kilograms but less than

8.4 kilograms of crack cocaine would previously have resulted in a base offense

level of 36, currently, offenses involving that quantity of crack cocaine result in a

base offense level of 34. Compare U.S.S.G. § 2D1.1(c)(2) (2013) with U.S.S.G. §

2D1.1(c)(3). Because Guyton received a 3-level increase for being a manager or

leader of criminal activity and a 2-level increase for obstruction of justice, his total

offense level under the revised Guidelines would be 39. Based on a total offense

level of 39 and a criminal history category of III, Guyton’s revised guideline range

would be 324 to 405 months’ imprisonment. We therefore vacate the district

court’s denial of the § 3582 motion, and remand for resentencing. We express no

opinion on whether the district court, after considering appropriate factors, should

exercise its discretion to grant a reduction. See Dillon v. United States, 560 U.S.

817, 831 (2010) (Pursuant to U.S.S.G. § 1B1.10(b)(1), “a court proceeding under §

3582(c)(2) ‘shall substitute’ the amended Guidelines range for the initial range

‘and shall leave all other guideline application decisions unaffected.’”).

      Despite the foregoing, the district court did not err in denying Guyton’s

request for appointment of counsel. In Webb, we held that “there is no statutory or

constitutional right to counsel for a § 3582(c)(2) motion or hearing.” 565 F.3d at


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795. As a result, “the decision to appoint an attorney is left to the discretion of the

district court.” Id. Moreover, nothing in the statutory language of § 3582(c)

requires a hearing. See generally 18 U.S.C. § 3582. Therefore, the district court

did not abuse its discretion in denying him counsel.

      VACATED AND REMANDED IN PART, AFFIRMED IN PART.




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