             Case: 16-10612      Date Filed: 11/17/2016   Page: 1 of 4


                                                             [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 16-10612
                           Non-Argument Calendar
                         ________________________

                    D.C. Docket No. 1:95-cr-00060-DLG-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                       versus

STEPHEN CHISHOLM,
a.k.a. Stephenegeno Chisholm,

                                                              Defendant-Appellant.

                         ________________________

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

                                (November 17, 2016)

Before TJOFLAT, MARTIN, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       Stephen Chisholm, 1 proceeding pro se, appeals the district court’s denial of

his motion to reduce his sentence, pursuant to 18 U.S.C. § 3582(c)(2), based on

Amendment 782 to the Sentencing Guidelines. Chisholm is serving a 322-month

sentence after he was convicted for possessing a firearm and ammunition as a felon

in violation of 18 U.S.C. § 922(g)(1); possessing marijuana with intent to distribute

in violation of 21 U.S.C. § 841(a)(1); possessing cocaine with intent to distribute in

violation of 21 U.S.C. § 841(a)(1); and possessing a firearm in furtherance of a

drug trafficking offense in violation of 18 U.S.C. § 924(c). He argues that the

district court partially sentenced him using the Drug Quantity Table in USSG

§ 2D1.1(c), and asks for a two-level reduction in his sentence under a new

guideline range calculated using Amendment 782.2 Amendment 782 provides a

two-level reduction in the base offense levels for most drug quantities listed in the

Drug Quantity Table. USSG App. C, amend. 782. However, Chisholm’s

guideline range was superseded by the mandatory minimum sentence required

under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). He is

therefore not eligible for a reduction under § 3582(c)(2). After careful review of

the record, we affirm the district court.

       1
          The government misspelled Chisholm’s name throughout its brief. We use the proper
spelling here.
        2
          In his Reply Brief, Chisholm for the first time also argues that his conviction under the
Armed Career Criminal Act, 18 U.S.C. § 924(e), was unconstitutional in light of the Supreme
Court’s ruling in Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015). However, this
claim is deemed abandoned because Chisholm failed to raise it in his initial brief. United States
v. Levy, 379 F.3d 1241, 1243–44 (11th Cir. 2004) (per curiam).
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      We review de novo the district court’s conclusions about the scope of its

legal authority under § 3582(c)(2). United States v. Colon, 707 F.3d 1255, 1258

(11th Cir. 2013). A district court may reduce a defendant’s term of imprisonment

if the defendant was sentenced based on a sentencing range that has since been

lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). In evaluating

whether a defendant should receive a sentence reduction, the “court must first

determine that a reduction is consistent with [USSG] § 1B1.10 before it may

consider whether the authorized reduction is warranted.” Dillon v. United States,

560 U.S. 817, 826, 130 S. Ct. 2683, 2691 (2010). Section 1B1.10 of the

Guidleines says that the applicable guideline range must have been lowered by the

Amendment to the Guidelines in order for a defendant to be eligible for a sentence

reduction. See USSG § 1B1.10 cmt. n.1.

      Chisholm’s guideline range resulted from the ACCA, so he is not eligible for

a sentence reduction. Under the ACCA, if a defendant is convicted of possessing a

firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and has three

earlier convictions for a “violent felony” or “serious drug offense,” then the

defendant’s sentence increases from a maximum of ten years, 18 U.S.C.

§ 924(a)(2), to a mandatory minimum of fifteen years and a maximum of life

imprisonment, id. § 924(e). The Guidelines provide that when the ACCA applies

and the defendant’s guideline offense level is not otherwise greater, then the


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defendant’s base offense level is 33. USSG § 4B1.4(b)(3)(B). But if the defendant

used or possessed the firearm in connection with a “crime of violence” or

“controlled substance offense,” as defined in USSG § 4B1.2, his base offense level

is 34. Id. § 4B1.4(b)(3)(A). And under Section 4B1.4(c), if the firearm was used

or possessed in connection with a crime of violence or controlled substance

offense, then a criminal history category of VI applies. See id. § 4B1.4(c)(2).

      Although the presentence investigation report adopted by the district court

did calculate Chisholm’s guideline range under the Drug Quantity Table, that

calculation was superseded by the ACCA’s base offense level of 34 under Section

4B1.4. The district court is not authorized to reduce a sentence under § 3582(c)(2)

where a retroactive Guidelines Amendment does not change the guideline range

that was the basis for the defendant’s sentence. United States v. Thomas, 545 F.3d

1300, 1302 (11th Cir. 2008) (per curiam). Because Amendment 782 made no

change in Chisholm’s guideline range, the district court correctly found that he was

not eligible for a sentence reduction. We therefore affirm the district court.

      AFFIRMED.




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