           Case: 15-15792   Date Filed: 05/24/2017   Page: 1 of 6




                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-15792
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:01-cr-00775-PAS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

CHARLES BERNARD GOLDMAN,

                                                         Defendant-Appellant.

                       ________________________

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

                              (May 24, 2017)

Before TJOFLAT, JORDAN and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Charles Bernard Goldman, a federal prisoner proceeding pro se, appeals the

district court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentences

based on Amendment 782 to the Sentencing Guidelines. Goldman contends that

the district court erred by denying his § 3582(c)(2) motion based on its

determination that he was ineligible for a sentence reduction. Specifically, he

asserts that the district court erred by failing to recalculate his amended guideline

sentencing range to take into account the offense level departure of one level he

received at sentencing. Goldman concedes that his proposed calculation of the

sentencing range results in an amended range that is lower than his current total

sentence, but he argues that the rule of lenity applies because U.S.S.G. § 1B1.10(b)

is ambiguous as applied to his factual situation.


      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).

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      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.” Id. For a defendant to be eligible for such a reduction, the 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. Id. § 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 id. App. C, amend. 782.

      However, 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). In making this determination, a district court must treat the

retroactive guideline amendment as if it had been in effect at the time the


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defendant was sentenced, leaving all other guideline application decisions

unaffected. U.S.S.G. § 1B1.10(b)(1). Further, the commentary to § 1B1.10

clarifies that a defendant’s “applicable guideline range” is “the guideline range that

corresponds to the offense level and criminal 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. § 1B1.10, comment. n.1(A).

      Additionally, policy statement § 1B1.10(b)(2)(A) provides, explicitly, that

“the court shall not reduce the defendant’s term of imprisonment under 18 U.S.C.

§ 3582(c)(2) and this policy statement to a term that is less than the minimum of

the amended guideline range.” U.S.S.G. § 1B1.10(b)(2)(A). There is one

exception to this prohibition, which applies if the district court sentenced the

defendant below the applicable guideline range pursuant to a substantial-assistance

motion by the government. Id. § 1B1.10(b)(2)(B). Accordingly, the commentary

to § 1B1.10 clarifies that a district court in a § 3582(c)(2) proceeding may not

reduce the defendant’s sentence below the minimum of the amended guideline

range in order to account for a downward departure that was not based on a

substantial-assistance motion. See id. § 1B1.10, comment. n.3.

      The district court did not err by denying Goldman’s § 3582(c)(2) motion for

a sentence reduction based on its conclusion that he was ineligible for relief. At

sentencing, the court found a total offense level of 35 and a criminal history


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category of VI, which yielded sentencing range of 292-365 months. However, the

district court departed downward from that range, imposing a 262-month total

sentence as a result of its finding that Goldman’s case was outside the heartland of

conduct described by the applicable guideline provisions.

      Retroactively applying Amendment 782 would decrease Goldman’s base

offense level under § 2D1.1(c) to 32, and his adjusted offense level under

§ 2D1.1(b) and § 3B1.1(c) to 36. However, because Goldman was designated as a

career offender under § 4B1.1, his otherwise applicable offense level would still be

adjusted upward to 37. See U.S.S.G. § 4B1.1 (providing that, “[i]f the offense

level for a career offender . . . is greater than the offense level otherwise applicable,

the offense level from the [career offender table] shall apply”). Retaining all other

guideline decisions, including the three-level reduction for acceptance of

responsibility under § 3E1.1, Goldman’s amended total offense level becomes 34

after application of the retroactive guideline amendment. Based on a total offense

level of 34 and a criminal history category of VI, Goldman’s amended guideline

range is 262-327 months. However, Goldman’s original 262-month total sentence

is at the bottom end of this amended guideline range, and the district court’s

downward departure at sentencing was not based on a substantial assistance

motion. See U.S.S.G. § 1B1.10(b)(2)(A)-(B). Accordingly, reducing his total

sentence below his amended guideline sentencing range would be inconsistent with


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the policy statement in § 1B1.10(b)(2), and the district court lacked authority to

grant a sentence reduction. See 18 U.S.C. § 3582(c)(2).

      Furthermore, contrary to Goldman’s assertion, the district court did not err

by failing to consider the downward departure in its calculation of his amended

guideline range. Even though Goldman was sentenced below his original

sentencing range as a result of a one-level “heartland” departure, this departure

does not impact his “applicable guideline range” for purposes of determining

§ 3582(c)(2) eligibility. See U.S.S.G. § 1B1.10, comment, n.1(A). Likewise, to the

extent that Goldman challenges his status as a career offender, his arguments are

not cognizable in a § 3582(c)(2) proceeding. See Bravo, 203 F.3d at 782. Finally,

Goldman’s reliance on the rule of lenity is equally unavailing, as

§ 1B1.10(b)(2)(A) is clear that the district court lacks authority to reduce a

defendant’s term of imprisonment to less than the minimum of the amended

guideline range.

      The district court’s decision is

      AFFIRMED.




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