          Case: 14-11217   Date Filed: 01/27/2015   Page: 1 of 8


                                                       [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-10563
                       Non-Argument Calendar
                     ________________________

             D.C. Docket No. 8:05-cr-00447-SDM-MAP-2


UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                               versus

JARRETT CANNION,
a.k.a. Jee,

                                                        Defendant-Appellant.

                     ________________________

                           No. 14-11217
                       Non-Argument Calendar
                     ________________________

             D.C. Docket No. 8:05-cr-00447-SDM-MAP-2

UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                versus
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JARRETT CANNION,
a.k.a. Jee,

                                                             Defendant-Appellant.
                          ________________________

                   Appeals from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                (January 27, 2015)

Before ROSENBAUM, JULIE CARNES, and FAY, Circuit Judges.

PER CURIAM:

      Jarrett Cannion is a pro se federal prisoner serving a 292-month sentence of

imprisonment for crack-cocaine offenses of which he was convicted in 2008. In

2013, Cannion filed a motion under 18 U.S.C. § 3582(c)(2) to reduce his sentence

based on Amendment 750 of the United States Sentencing Guidelines (“U.S.S.G.”

or “Guidelines”), which lowered the guideline ranges for crack-cocaine offenses,

as well as the Fair Sentencing Act of 2010 (“FSA”), which lowered the statutory

mandatory minimums applicable to certain crack-cocaine offenses. The district

court denied the motion, concluding that Cannion was not entitled to relief under

§ 3582(c)(2) because (1) the FSA was not a Guidelines amendment and did not

apply retroactively, and (2) Amendment 750 did not lower Cannion’s applicable

guideline range.




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       On appeal, Cannion argues that the district court abused its discretion in

addressing his § 3582(c)(2) motion based on Amendment 750. The government, in

turn, concedes that the district court erred in finding Cannion ineligible for relief

under § 3582(c)(2), and it asks this Court to reverse the denial and remand for

consideration of whether Cannion should receive a discretionary sentence

reduction. Because the district court erroneously concluded that it lacked the

authority to entertain Cannion’s motion, we reverse and remand. 1

       Cannion was convicted in 2008 of one count of distributing at least five

grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii), and

one count of conspiring to distribute at least fifty grams of cocaine base, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii) and 846. In the presentence

investigation report (“PSR”), the probation officer held Cannion responsible for

77.88 grams of crack cocaine, yielding a base offense level of 30 under U.S.S.G.

Manual § 2D1.1. After a three-level reduction for acceptance of responsibility,

Cannion’s total offense level was 27. With a criminal history category of VI, the

PSR provided a guideline range between 130 and 162 months’ imprisonment.

       At sentencing, the district court granted the government’s request for an

upward departure under U.S.S.G. Manual § 4A1.3 based on Cannion’s extensive
       1
          Cannion does not expressly challenge the denial of his motion based on the FSA, and
therefore arguably has abandoned the issue. See Sapuppo v. Floridian Allstate Ins. Co., 739 F.3d
678, 680-81 (11th Cir. 2014). In any case, we agree with the government that the district court
correctly determined that the FSA did not provide Cannion a basis for relief under § 3582(c)(2).
See United States v. Berry, 701 F.3d 374, 377 (11th Cir. 2012).
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criminal history. The court increased the base offense level from 30 to 38, and

then applied the three-level reduction for acceptance of responsibility, leaving

Cannion with a total offense level of 35 and a new guideline range of 292 to 365

months in prison. The court then imposed a total sentence of 292 months in prison.

       In December 2013, Cannion moved for a reduction in his sentence under

§ 3582(c)(2), based on Amendment 750 and the FSA. Amendment 750 took effect

in November 2011, lowering the base offense levels applicable to crack-cocaine

offenses by revising the drug-quantity tables in U.S.S.G. Manual § 2D1.1(c). See

U.S.S.G. App. C., amend. 750. For an offender like Cannion, who was held

responsible for between 28 and 112 grams of crack cocaine, Amendment 750

reduced the base offense level from 30 to 26.                 Compare U.S.S.G. Manual

§ 2D1.1(c)(7) (2007), with U.S.S.G. Manual § 2D1.1(c)(7) (2011). Amendment

750 is retroactively applicable and may be enforced through a § 3582(c)(2) motion.

U.S.S.G. Manual § 1B1.10(c).

       In denying Cannion’s motion, the district court determined that Amendment

750 did not have the effect of lowering his guideline range because, solely as a

result of the upward departure under § 4A1.3, “Cannion’s 292-month sentence was

not derived from the amount of cocaine base for which he was responsible.” 2


       2
        It appears that Cannion filed multiple notices of appeal in this case, triggering the
opening of two appeal numbers (14-10563 and 14-11217). Because both notices indicate
Cannion’s intent to appeal the district court’s denial of his § 3582(c)(2) motion, we direct the
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Because the district court erred in finding Cannion ineligible for a sentence

reduction based on the § 4A1.3 departure, we reverse and remand.

       We review de novo a district court’s legal conclusions on the scope of its

authority under § 3582(c)(2) and the Sentencing Guidelines. United States v.

Webb, 565 F.3d 789, 792 (11th Cir. 2009).

       Section § 3582(c)(2) grants federal courts the power to reduce a term of

imprisonment if the defendant was sentenced based on a sentencing range that the

Sentencing Commission subsequently lowered through a retroactive amendment to

the Sentencing Guidelines. Dillon v. United States, 560 U.S. 817, 824-25, 130 S.

Ct. 2683, 2690 (2010); 18 U.S.C. § 3582(c)(2); see U.S.S.G. Manual

§ 1B1.10(a)(1). If a defendant is eligible for a sentence reduction, the court may,

in its discretion, reduce the term of imprisonment after considering the sentencing

factors listed in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3582(c)(2).

       The Sentencing Commission has explained that a reduction is not authorized

under the Guidelines if a retroactive amendment “does not have the effect of

lowering the defendant’s applicable guideline range.”                  U.S.S.G. Manual

§ 1B1.10(a)(2)(B). The Commission defines the “applicable guideline range,” in

turn, as “the guideline range that corresponds to the offense level and criminal



Clerk’s Office to DISMISS as duplicative appeal no. 14-11217, which was based on the second,
untimely notice of appeal docketed by the district court on March 20, 2014.

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history category determined pursuant to § 1B1.1(a), which is determined before

consideration of any departure provision in the Guidelines Manual or any

variance.”    U.S.S.G. Manual § 1B1.10, cmt. (n.1(A)); see United States v.

Hippolyte, 712 F.3d 535, 540-41 (11th Cir.), cert. denied, 134 S. Ct. 181 (2013).

Because the district court did not exclude the § 4A1.3 departure in determining

Cannion’s “applicable guideline range,” the court erred. See United States v.

Hargrove, 732 F.3d 1253, 1254-55 & n.1 (11th Cir. 2013) (“In Amendment 759,

the Sentencing Commission made explicit that § 4A1.3 departures are not part of

the ‘applicable guideline range.’”); U.S.S.G. App. C, amend. 759. Nor was the

error harmless.   Instead, Cannion is entitled to have his § 3582(c)(2) motion

addressed on the merits.

      Amendment 750 had the effect of lowering Cannion’s “applicable guideline

range.” See U.S.S.G. Manual § 1B1.10(a)(2)(B). In making this determination,

we first look to the guideline range that corresponds to the offense level and

criminal-history category without including the § 4A1.3 upward departure. See

Hargrove, 732 F.3d at 1254-55 & n.1. Here, Cannion’s “applicable guideline

range” before Amendment 750 was 130 to 162 months’ imprisonment (with a base

offense level of 30).

      Next, we must “determine the amended guideline range that would have

been applicable to the defendant if [Amendment 750] had been in effect at the time


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the defendant was sentenced.” U.S.S.G. Manual § 1B1.10(b)(1); see Webb, 565

F.3d at 793. In doing so, we must “substitute only [Amendment 750] for the

corresponding guideline provisions that were applied when the defendant was

sentenced and shall leave all other guideline application decisions unaffected.”

U.S.S.G. Manual § 1B1.10(b)(1). As a result, had Amendment 750 been in effect

at the time of his sentencing, Cannion’s guideline range would have been 92 to 115

months’ imprisonment (with a base offense level of 26).

      But because Cannion is subject to a 120-month statutory mandatory

minimum, his guideline range would be simply 120 months’ imprisonment. See 18

U.S.C. § 841(b)(1)(B)(iii) (2008); U.S.S.G. Manual § 5G1.1(b); see also Hargrove,

732 F.3d at 1255. Amendment 750, therefore, lowered Cannion’s “applicable

guideline range” from a range of 130 to 162 months to a range of 120 months.

U.S.S.G. Manual § 1B1.10, cmt. (n.1(A)); see 18 U.S.C. § 3582(c)(2).

      In sum, the district court erroneously concluded that it lacked the authority

to reduce Cannion’s sentence under § 3582(c) by basing its decision on the

§ 4A1.3 departure. See Hargrove, 732 F.3d at 1254-55 & n.1. We therefore

reverse the denial of Cannion’s motion and remand for a determination of whether

Cannion should receive a discretionary sentence reduction in consideration of the

Sentencing Guidelines and the § 3553(a) sentencing factors.          See 18 U.S.C.

§ 3582(c)(2).


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     Appeal no. 14-10563 is REVERSED and REMANDED; Appeal no. 14-

11217 is DISMISSED as duplicative.




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