                 Case: 15-15248    Date Filed: 11/17/2016   Page: 1 of 4


                                                                [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 15-15248
                               Non-Argument Calendar
                             ________________________

                    D.C. Docket No. 1:07-cr-00034-WTM-WLB-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

versus

JAMES LESTER KIMBRELL, III,

                                                               Defendant-Appellant.

                             ________________________

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

                                  (November 17, 2016)

Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:

         James Kimbrell, III, proceeding pro se, appeals from the district court’s
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denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentences based on

Amendment 782 to the Sentencing Guidelines. Kimbrell was sentenced to 60

months’ imprisonment for distributing pseudoephedrine and 108 months’

imprisonment for possession of a firearm and ammunition by a convicted felon.

Kimbrell argues that Amendment 782 lowers his sentence for distributing

pseudoephedrine.

      We review de novo the district court’s legal conclusions about the scope of

its authority under § 3582(c)(2). United States v. Lawson, 686 F.3d 1317, 1319

(11th Cir. 2012). The defendant, as the movant, bears the burden of establishing

that a retroactive amendment actually lowers his guideline range. United States v.

Hamilton, 715 F.3d 328, 337 (11th Cir. 2013). However, § 3582(c)(2) does not

grant the court jurisdiction to consider extraneous resentencing issues, including

collateral attacks on a sentence. United States v. Bravo, 203 F.3d 778, 782 (11th

Cir. 2000).

      Ordinarily, a district court may not modify a defendant’s term of

imprisonment once it has been imposed. 18 U.S.C. § 3582(c). However, a district

court may reduce a defendant’s sentence if the term of imprisonment was “based

on a sentencing range that has subsequently been lowered by the Sentencing

Commission.” 18 U.S.C. § 3582(c)(2). For a defendant to be eligible for such a

reduction based on a subsequent amendment to the Sentencing Guidelines, the


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relevant amendment must be listed in U.S.S.G. § 1B1.10(d). U.S.S.G.

§ 1B1.10(a)(1). Because Amendment 782 is one of the listed amendments that

applies retroactively, it may serve as the basis for a § 3582(c)(2) motion to reduce

sentence. U.S.S.G. §§ 1B1.10(a)(1), (d). Amendment 782 revises the drug

quantity tables in U.S.S.G. § 2D1.1, resulting in a two-level reduction to the base

offense level applicable to most drug offenses. See U.S.S.G. App. C, Amend. 782

(2014). For defendants charged with 36.5 grams of pseudoephedrine, the base

offense level was reduced from 26 to 24. Compare U.S.S.G. § 2D1.11(d)(8)

(2007) to U.S.S.G. § 2D1.11(d)(8) (2015). However, under the Guidelines’

grouping rules, the higher adjusted offense level determines the applicable

guideline range. U.S.S.G. § 3D1.1.

      But the grounds upon which a district court may reduce a defendant’s

sentence pursuant to § 3582(c)(2) are narrow. United States v. Berry, 701 F.3d

374, 376 (11th Cir. 2012). A district court may not reduce a defendant’s term of

imprisonment unless a reduction is consistent with applicable policy statements

issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). A reduction is

inconsistent with the Guidelines’ policy statement if the amendment does not have

the effect of lowering the defendant’s “applicable guideline range.” U.S.S.G.

§ 1B1.10(a)(2)(B). Thus, “[w]here a retroactively applicable guideline amendment

reduces a defendant’s base offense level, but does not alter the sentencing range


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

reduction in sentence.” Hamilton, 715 F.3d at 337.

      The district court did not err when it denied Kimbrell’s § 3582(c)(2) motion

because Amendment 782 does not lower his guideline range. Although

retroactively applying Amendment 782 decreases Kimbrell’s base offense level for

Count 1, his adjusted offense level for Count 2 remains higher, and under the

Guidelines’ grouping rules, the higher adjusted offense level determines the

applicable guideline range. U.S.S.G. § 3D1.1. Accordingly, Amendment 782 does

not alter the guideline range underlying Kimbrell’s sentence and we affirm.

      AFFIRMED.




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