                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                           DECEMBER 11, 2009
                              No. 09-11301                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                 D. C. Docket No. 04-00566-CR-T-27-TBM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

CURTIS SMILEY,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                            (December 11, 2009)

Before EDMONDSON, HULL and FAY, Circuit Judges.

PER CURIAM:
      Curtis Smiley, a federal prisoner convicted of a crack cocaine offense,

appeals the district court’s denial of his motion for a sentence reduction, filed

pursuant to 18 U.S.C. § 3582(c)(2). The question in this case is how to determine

whether a defendant is eligible for a § 3582(c)(2) sentence reduction because of

Amendment 706 when there was § 5K1.1 departure in the original sentence. After

review, we conclude that Amendment 706 must lower the sentencing range before

the § 5K1.1 departure in order for a defendant to be eligible for a § 3582(c)(2)

reduction. Thus, we affirm the district court’s decision that the defendant was not

eligible for a § 382(c)(2) reduction.

                                 I. BACKGROUND

A.    Smiley’s 2005 Sentencing

      Pursuant to a plea agreement, Smiley pled guilty to conspiracy to possess

with intent to distribute 50 grams or more of cocaine base, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A)(iii) and 846. At a 2005 sentencing hearing, the

district court assigned Smiley a base offense level of 38, pursuant to U.S.S.G.

§ 2D1.1(c)(1) (2004), because Smiley’s offense involved 1.5 kilograms or more of

crack cocaine. The district court calculated a total offense level of 39 based on: (1)

a four-level increase, pursuant to U.S.S.G. § 3B1.1(a), for Smiley’s leadership role

in the offense; and (2) a three-level reduction, pursuant to U.S.S.G. § 3E1.1(a) and



                                           2
(b), for Smiley’s acceptance of responsibility. With a total offense level of 39 and

a criminal history category of VI based on 23 criminal history points, Smiley’s

guideline range was 360 months’ to life imprisonment.1

       The district court then granted the government’s motion for a downward

departure pursuant to U.S.S.G. § 5K1.1 based on Smiley’s substantial assistance.

The district court stated that it would “depart downward five levels to a level 34,

which gives us a range of 262 to 327 months.” The district court sentenced Smiley

to 262 months’ imprisonment in 2005.

B.     Smiley’s § 3582(c)(2) Motion

       In March 2008, Smiley filed a § 3582(c)(2) motion to reduce his sentence

based on Amendment 706 to the Sentencing Guidelines, which lowered by two

levels the base offense levels for certain crack cocaine offenses. The district court

denied Smiley’s § 3582(c)(2) motion, concluding Smiley was ineligible for a

sentence reduction. Smiley’s base offense level of 38, with the three-level role

adjustment and two-level acceptance reduction, yielded a total offense level of 39.

Smiley’s criminal history category of VI and total offense level of 39 yielded a



       1
        Although Smiley qualified for career-offender status, the district court did not apply the
career offender guideline because Smiley’s total offense level applicable to the underlying drug
offense, 39, was greater than his career offender offense level, 37. See U.S.S.G. § 4B1.1(b)
(providing that the greater offense level, as between the career offender offense level and the
otherwise applicable offense level, shall apply).

                                                 3
guideline range of 360 to life imprisonment before the § 5K1.1 departure.

Amendment 706 did lower Smiley’s offense level by two levels from 38 to 36,

which with the role and acceptance adjustments resulted in a total offense level of

37. However, a total offense level of 37, with a criminal history category VI,

yielded the same guideline range of 360 months’ to life imprisonment. Thus, the

district court determined Smiley’s sentencing range was not lowered by

Amendment 706 as required to be eligible for a § 3582(c)(2) reduction.

      In a motion for reconsideration, Smiley argued that the district court should

have assessed the impact of Amendment 706 by looking at his “total offense level”

after his § 5K1.1 departure was taken into account, which he said was 34 before

Amendment 706 and 32 after Amendment 706. Smiley argued that an offense

level 32 and a criminal history category VI would yield a lower sentencing range

of 210 to 262 months. The district court denied Smiley’s motion for

reconsideration. Smiley appealed.

                                 II. DISCUSSION

      Under § 3582(c)(2), a district court may modify a defendant’s term of

imprisonment if the defendant’s sentence was “based on a sentencing range that

has subsequently been lowered by the Sentencing Commission pursuant to 28

U.S.C. § 994(o).” 18 U.S.C. § 3582(c)(2). A § 3582(c)(2) reduction must be



                                          4
“consistent with applicable policy statements issued by the Sentencing

Commission.” Id. The policy statement in U.S.S.G. § 1B1.10(a), similarly

provides that where “the guideline range applicable to that defendant” has

subsequently been lowered by an amendment to the Guidelines, the district court

may reduce the defendant’s term of imprisonment under § 3582(c)(2).

U.S.S.G. § 1B1.10(a)(1) (2008). However, § 1B1.10(a) provides that a sentence

reduction “is not authorized” if the amendment “does not have the effect of

lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2).

Thus, “[w]here a retroactively applicable guideline 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), cert.

denied, 129 S. Ct. 965 (2009).2

       Smiley’s § 3582(c)(2) motion was based on Amendment 706, which reduced

certain base offense levels in U.S.S.G. § 2D1.1(c)’s drug quantity table applicable

to crack cocaine offenses. See U.S.S.G. app. C, amends. 706, 713 (2007). In

Smiley’s case, Amendment 706 applies to his particular crack cocaine offense and



       2
        We review de novo the district court’s legal conclusions regarding the scope of its
authority under 18 U.S.C. § 3582(c)(2). United States v. James, 548 F.3d 983, 984 (11th Cir.
2008).

                                               5
reduced the base offense level for his drug offense from 38 to 36. See U.S.S.G.

§ 2D1.1(c)(2). And, after the four-level increase for his leadership role and three-

level reduction for acceptance of responsibility, Smiley’s amended total offense

level would be 37 (as opposed to his original total offense level of 39). Even after

Amendment 706, any offense level above 36 yields the same sentencing range of

360 months to life imprisonment if, like Smiley, the defendant has a criminal

history category of VI. See U.S.S.G. ch. 5, pt. A, Sentencing Table.3 For this

reason, Amendment 706 did not have the effect of lowering Smiley’s applicable

guideline range. And, under U.S.S.G. § 1B1.10(a)(2)(B), a sentence reduction is

not authorized if Amendment 706 “does not have the effect of lowering the

defendant’s applicable guideline range.” Thus, the district court did not err in

concluding that it lacked authority to grant Smiley a § 3582(c)(2) sentence

reduction.

       Smiley argues that the district court should have assessed the impact of

Amendment 706 on his sentencing range using only Smiley’s offense level after

the § 5K1.1 five-level downward departure. In other words, Smiley wants his

       3
        The government incorrectly asserts that, after Amendment 706, the career offender
offense level becomes the relevant offense level because it is greater than the offense level
derived from Smiley’s drug quantity. See U.S.S.G. § 4B1.1(b) (noting that, in comparing the
two offense levels, the career offender offense level is adjusted for acceptance of responsibility).
Smiley’s offense level would be 34 under the career offender provision after a three-level
reduction for acceptance of responsibility, which is less than offense level of 37 derived from
§ 2D1.1(c) as amended by Amendment 706.

                                                  6
offense level calculated using both the two-level reduction in Amendment 706 and

the five-level departure under § 5K1.1. Smiley points out that a total offense level

of 32 and a criminal history category of VI results in a lower sentencing range of

210 to 262 months.4 Smiley’s argument lacks merit for several reasons.

       First, Smiley misapprehends the nature of § 5K1.1 departures. Section

5K1.1 provides that, upon the government’s motion stating that the defendant

provided substantial assistance, “the court may depart from the guidelines” and

“[t]he appropriate reduction shall be determined by the court” based on

considerations such as the significance, usefulness, timeliness, nature and extent of


       4
          Smiley cites United States v. Vautier, 144 F.3d 756 (11th Cir. 1998), but that case
involved Amendment 516 and the narrow issue of whether the court that granted a prior
downward departure was required to honor its original downward departure. Vautier argued that
after substituting the new base offense level under Amendment 516 for his marijuana conviction,
the district court was required to reduce his sentence and to grant a substantial assistance
downward departure again. 144 F.3d at 758-60. Vautier rejected this claim concluding that the
district court had discretion whether to reapply a downward departure for substantial assistance.
Id. at 761.
         In any event, Vautier does not address the threshold question of eligibility and is not on
point. As U.S.S.G. § 1B1.10(a) makes clear, a district court considering a § 3582(c)(2) motion
first must address whether it has the “authority” to reduce a defendant’s sentence, i.e. whether
the defendant is eligible for a sentence reduction. See U.S.S.G. § 1B1.10(a) & cmt. n.1(A). If
the district court determines that the amendment did indeed lower the applicable guidelines
range, the defendant is eligible for a § 3582(c)(2) reduction and the district court “may” reduce
his sentence, but is not required to do so. Only after eligibility is established does § 1B1.10(b)’s
two-step process, described in Vautier, comes into play.
         In Smiley’s case, the district court concluded, under § 1B1.10(a), that Smiley was
ineligible for a § 3582(c)(2) reduction and that it did not have the authority to grant Smiley’s
§ 3582(c)(2) motion. Therefore, the district court never reached the sentence recalculation
required by § 1B1.10(b) or the question of whether to re-apply the five-level downward
departure. Instead, the only question the district court addressed was the question presented on
appeal–whether Smiley’s “applicable guideline range” was lowered by Amendment 706 within
the meaning of § 1B1.10(a)(1).

                                                 7
the defendant’s assistance. U.S.S.G. § 5K1.1. The overall structure of the

Sentencing Guidelines contemplates that the “applicable guideline range” is

calculated first and that § 5K1.1 is a departure from the guideline range, not a

guideline range of its own. See U.S.S.G. § 1B1.1 (providing the order to be

followed in applying the provisions of the Sentencing Guidelines Manual).

      Second and more specifically, in applying the Sentencing Guidelines, the

district court first calculates the offense level under Chapters 2 and 3 and the

criminal history category under Chapter 4. U.S.S.G. § 1B1.1(a)-(f). As outlined

above, Amendment 706 lowered Smiley’s base offense level from 38 to 36, but

due to the role and acceptance adjustments, Smiley’s total offense level was 37.

The district court then uses the total offense level and criminal history category it

has calculated to determine the applicable guidelines range in the Sentencing Table

in Part A of Chapter 5. U.S.S.G. § 1B1.1(g). After calculating the applicable

guideline range, the district court may consider departures in Part K of Chapter 5.

U.S.S.G. § 1B1.1(i). Part K of Chapter 5 authorizes the district court to “depart

from the guidelines,” based on the defendant’s substantial assistance. In other

words, U.S.S.G. § 5K1.1 “does not provide a Guidelines range of its own, but

rather [is] a departure from the Guidelines range, made after the applicable

Guidelines range has been calculated.” United States v. Lindsey, 556 F.3d 238,



                                           8
245 (4th Cir. 2009) (rejecting defendant’s argument that, to determine whether the

applicable guideline range has been lowered, the district court should apply

Amendment 706’s two-level offense level reduction after a nine-level downward

departure under § 5K1.1), cert. denied, ___ S. Ct. ___, No. 08-11044, 2009 WL

1807431 (Oct. 5, 2009). Indeed, the application notes to U.S.S.G. § 1B1.1 define

“downward departure” as a “departure that effects a sentence less than a sentence

that could be imposed under the applicable guideline range or a sentence that is

otherwise less than the guideline sentence.” U.S.S.G. § 1B1.1 cmt. n.1(E)

(emphasis added).

      In short, the § 5K1.1 downward departure did not change Smiley’s

applicable guideline range; rather, it is an authorized departure from the applicable

guideline range based on Smiley’s substantial assistance. That the district court in

Smiley’s case quantified its § 5K1.1 discretionary departure in terms of five

offense levels as opposed to percentages, does not change the fact that a § 5K1.1

departure is from the calculated guideline range. We agree with the Fourth Circuit

in Lindsey that the fact that the district court quantified the downward departure in

offense-level terms “did not amount to the application of a ‘sentencing range’

authorized and made applicable by the Sentencing Guidelines.” 556 F.3d at 246.

As the Lindsey court pointed out, § 5K1.1 merely instructs the district court to



                                          9
determine an “appropriate reduction,” leaving the district court free to express that

reduction as a percentage, a flat number of months or a number of offense levels.

Id. at 245-46.

      Third, the language of § 1B1.10(b) also supports this conclusion. Section

1B1.10(b) provides that, while the district court may consider previously-given

departures in § 1B1.10(b)(2), the district court does so only after it has determined

that a departure is warranted in § 1B1.10(b)(1). See U.S.S.G. § 1B1.10(b)(1) &

(2). Furthermore, § 1B1.10(b)(2) describes a sentence imposed pursuant to a

downward departure as a term of imprisonment that is “less than the term of

imprisonment provided by the guideline range applicable to the defendant . . . .”

U.S.S.G. § 1B1.10(b)(2)(B), see Lindsey, 556 F.3d at 245 (explaining that

§ 1B1.10(b)(2) “directs that only after it is determined that a reduction under

§ 3582(c)(2) is warranted via the calculation in § 1B1.10(b)(1), a downward

departure may be made from the amended sentence”). Thus, § 1B1.10(b)

recognizes that a “defendant’s applicable guideline range” does not include

downward departures.

      Here, based on his total offense level of 39 and criminal history category of

VI, Smiley’s applicable guideline range, within the meaning of § 1B1.10(a), was

360 months’ to life imprisonment. The district court’s subsequent § 5K1.1



                                          10
downward departure was a departure from that applicable guideline range and did

not provide a new guideline range. As discussed above, even after Amendment

706 reduced his base offense level and in turn his total offense level, Smiley’s

applicable guideline range remained the same because of his criminal history

category VI. Thus, Smiley was not eligible for a § 3582(c)(2) sentence reduction.5

       AFFIRMED.




       5
         Because Smiley is ineligible for a § 3582(c)(2) sentence reduction, the district court had
no authority to consider the 18 U.S.C. § 3553(a) factors and impose a new sentence. See United
States v. Webb, 565 F.3d 789, 793 (11th Cir. 2009) (explaining that, because the defendant’s
sentencing range did not change and the district court did not have authority to reduce the
defendant’s sentence, the district court did not need to examine the § 3553(a) factors). Smiley’s
argument that his original 262-month sentence is unreasonable is outside the scope of the
§ 3582(c)(2) proceeding. See 18 U.S.C. § 3582(c)(2) (limiting proceedings under § 3582(c)(2)
to cases in which a retroactive amendment affects the applicable guidelines range); United States
v. Bravo, 203 F.3d 778, 782 (11th Cir. 2000) (explaining that § 3582(c)(2) does not “grant to the
court jurisdiction to consider extraneous resentencing issues”).

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