           Case: 15-11184    Date Filed: 11/19/2015   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-11184
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 9:08-cr-80073-DTKH-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

FRANK JACKSON,

                                                          Defendant-Appellant.

                      ________________________

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

                            (November 19, 2015)

Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Frank Jackson, a federal prisoner, appeals the district court’s denial of his

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

He admits that his original sentence falls below even the amended guideline range,

which would ordinarily prevent its downward modification. But Jackson contends

that he has sufficiently cooperated with the government to benefit from the

substantial-assistance exception, and the district court erred by dismissing his

§ 3582(c)(2) motion without holding an evidentiary hearing on that issue or

requiring the government to respond. After careful consideration, we affirm.

                                          I.

      We review de novo a district court’s legal conclusions regarding the scope

of its authority under § 3582(c)(2). United States v. Phillips, 597 F.3d 1190, 1194

n.9 (11th Cir. 2010). The decision whether to grant an evidentiary hearing is

reviewed for abuse of discretion. United States v. Hill, 643 F.3d 807, 874 (11th

Cir. 2011).

      Once imposed, a sentence can be modified only in narrow circumstances.

See Phillips, 597 F.3d at 1194–95. One such circumstance is when a defendant

was sentenced “based on a sentencing range that has subsequently been lowered by

the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Any reduction must be

consistent with the Sentencing Commission’s applicable policy statements. Id.




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      Normally, a district court may not reduce a defendant’s sentence “to a term

that is less than the minimum of the amended guideline range.” USSG

§ 1B1.10(b)(2)(A). There is one exception to this rule: when the defendant

previously received a below-guideline sentence based on his substantial assistance

to the government. See USSG § 1B1.10(b)(2)(B); USSG § 1B1.10, comment.

(n.3). Thus, a sentence may be reduced below the amended guideline range if (and

only if) the defendant already received a downward departure for providing

substantial assistance to the government—as opposed to simply receiving a

downward variance based on the § 3553(a) factors. See United States v. Colon,

707 F.3d 1255, 1259–60 (11th Cir. 2013) (upholding § 1B1.10(b)(2)(A)’s

restriction on § 3582(c)(2) sentence reductions in the context of downward

variances, as opposed to downward departures for substantial assistance).

                                         II.

      Jackson’s convictions arise from a drug sting in which he and several

accomplices set out to steal about ten kilograms of cocaine. Instead, Jackson’s

accomplices wound up in a gunfight with police, and he fled the scene in the

getaway car, ultimately being apprehended after a chase.

      Jackson pleaded guilty to two counts: (1) conspiracy to possess with intent

to distribute cocaine hydrochloride in excess of five kilograms (in violation of 21

U.S.C. §§ 841, 846), and (2) brandishing a firearm in relation to a drug trafficking

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crime (in violation of 18 U.S.C. § 924(c)(1)(A)(iii)). Only the first count is

relevant to this appeal. Under the 2008 Guidelines, Jackson’s base offense level

for Count 1 was 32. After adjustments, his total offense level was calculated at 39,

which resulted in a guideline range of 324 to 405 months.

      At sentencing, the court confirmed this guideline range. After applying the

§ 3553(a) factors, the court granted a downward variance and sentenced Jackson to

216-months imprisonment on Count 1. He was not given a downward departure

for substantial assistance at that time or any time since; though the government has

occasionally suggested that it might move for one. For example, during the

sentence hearing, the government stated “[t]here is a possibility” it would file such

a motion. And later, in response to one of Jackson’s motions to compel filing of a

substantial-assistance motion, the government stated it “does not exclude [that]

possibility.”

                                         III.

      In 2014, Jackson moved to reduce his sentence in light of Amendment 782

to USSG § 2D1.1, which lowered the base offense level for most drug offenses.

As the district court acknowledged, Amendment 782 does in fact reduce Jackson’s

base offense level, creating an amended guideline range of 262 to 327 months.

However, the low end of this amended range is still above Jackson’s original

sentence of 216 months. Thus, the district court could not reduce Jackson’s

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sentence pursuant to § 3582(c)(2) unless he had already received a downward

departure for substantial assistance. See USSG § 1B1.10(b)(2)(A)–(B); Colon, 707

F.3d at 1259–60.

       Jackson has never received such a downward departure. He does not

contend otherwise. Indeed, Jackson’s repeated attempts to compel the government

to file a substantial-assistance motion have been unsuccessful.1 On this record, the

district court correctly denied Jackson’s motion for a sentence reduction.

       That the district court did so without first holding an evidentiary hearing or

requiring the government to respond to Jackson’s motion was not an abuse of

discretion. While the district court suggested after a preliminary review of

Jackson’s § 3582(c)(2) motion that it “may schedule an evidentiary hearing” if the

government objected to the motion (which the government never did), whether to

ultimately hold a hearing remained within the district court’s sound discretion.

United States v. Yesil, 991 F.2d 1527, 1531 (11th Cir. 1992).

       Beyond that, any potential evidentiary hearing would have concerned

Jackson’s § 3582(c)(2) motion pursuant to Amendment 782, not the issue of

Jackson’s present eligibility for a substantial-assistance sentence reduction.



1
  Jackson is wrong to characterize the government’s past statements that it might file a
substantial-assistance motion as “promise[s]” and “obligations.” Similarly, the plea agreement
states that the government “reserves the right” to file such motions in its “sole and unreviewable
judgment,” and emphasizes that “nothing in this Agreement may be construed to require this
Office to file any [substantial-assistance] motion.”
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Conducting a hearing on Jackson’s alleged assistance of the government was

simply outside the scope of a § 3582(c)(2) proceeding. See United States v. Bravo,

203 F.3d 778, 781 (11th Cir. 2000) (“This Circuit has been very clear in holding

that a sentencing adjustment undertaken pursuant to Section 3582(c)(2) does not

constitute a de novo resentencing. Indeed, we have held that all original

sentencing determinations remain unchanged with the sole exception of the

guideline range that has been amended since the original sentencing.”) (citation

omitted). This was not an opportunity for Jackson to reopen other aspects of his

sentencing. Upon review of the record and consideration of the parties’ briefs, we

affirm.

      AFFIRMED.




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