              Case: 15-10227    Date Filed: 06/08/2015   Page: 1 of 4


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 15-10227
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:12-cr-20571-RNS-1

UNITED STATES OF AMERICA,
                                                                  Plaintiff-Appellee,


                                      versus


KENNETH MICHAEL THOMAS,
                                                             Defendant-Appellant.

                          ________________________

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

                                  (June 8, 2015)

Before TJOFLAT, WILSON and MARTIN, Circuit Judges.

PER CURIAM:

      Kenneth Michael Thomas, a federal prisoner proceeding pro se, appeals the

denial of his motion for a sentence reduction. We affirm.
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       Thomas pleaded guilty to several drug and gun counts. To calculate his

guidelines sentencing range, the district court grouped Thomas’s counts. See

United States Sentencing Guidelines § 3D1.2 (instructing sentencing courts to

group counts “involving substantially the same harm”). 1 The district court

calculated an offense level for each of the grouped counts. See id. § 3D1.3(a).

Two guidelines sections provided offense levels for the grouped counts: § 2D1.1

(for the drug counts) and § 2K2.1 (for the gun counts). Adhering to the grouping

rules, the district court gave the group the highest offense level, which was

calculated under § 2K2.1—the guideline for the gun counts. See USSG

§ 3D1.3(a).

       Years later, Thomas moved for a sentence reduction. He argued that

Amendment 782, which retroactively amended § 2D1.1, lowered his guideline

range and warranted resentencing. The district court denied his motion, explaining

that Thomas was not entitled to a reduction because his sentence was calculated

using § 2K2.1, not § 2D1.1, so Amendment 782 did not affect his guideline range.

       A district court may reduce a defendant’s sentence if he “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); see also USSG

       1
         The district grouped all but one of Thomas’s counts. He pleaded guilty to one count of
carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c). That
count was not grouped because it required a separate sentence consecutive to any other term of
imprisonment. See § 924(c)(1)(A)(i); USSG § 5G1.2(a)


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§ 1B1.10(a)(1). We review de novo a district court’s legal conclusions regarding

its authority under the Sentencing Guidelines. United States v. Moore, 541 F.3d

1323, 1326 (11th Cir. 2008). Amendment 782 provides a two-level reduction in

the base offense levels for most drug quantities listed in the table in § 2D1.1(c).

USSG app. C, amend. 782. When it applies, Amendment 782 may serve as the

basis for a sentence reduction. See § 1B1.10(d).

      But Amendment 782 does not apply here. It lowered the offense levels for

§ 2D1.1, but Thomas’s offense level was calculated using § 2K2.1. A reduction is

not authorized by an amendment that addresses one guideline if the sentence was

imposed under another. See United States v. Berry, 701 F.3d 374, 376 (11th Cir.

2012) (per curiam); § 1B1.10 cmt. n.1(A); cf. Moore, 541 F.3d at 1327 (explaining

that the defendants were ineligible for sentence reductions based on an amendment

that lowered base offense levels under § 2D1.1 because the amendment had no

effect on the career-offender guideline, which generated their guideline ranges).

      The district court correctly denied Thomas’s motion. Although § 2D1.1 did

provide the offense level for the grouped drug counts, the offense level for the

group as a whole was calculated using § 2K2.1. See USSG § 3D1.3(a). Thus,

Amendment 782—which lowered the offense levels for § 2D1.1—does not affect

Thomas’s offense level, which would remain unchanged under § 2K2.1 and the




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grouping rules. Because Amendment 782 does not lower Thomas’s applicable

guideline range, he is not eligible for a sentence reduction. 2

       AFFIRMED.




       2
         Thomas also argues that Freeman v. United States, 564 U.S. ___, 131 S. Ct. 2685
(2011), applies. But Freeman is relevant only to defendants who entered binding plea
agreements, and Thomas’s plea agreement was nonbinding. See United States v. Lawson, 686
F.3d 1317, 1320 (11th Cir. 2012) (per curiam) (“In Freeman, the question before the Supreme
Court was whether defendants who entered into Rule 11(c)(1)(C) plea agreements were eligible
for § 3582(c)(2) relief.”).


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