           Case: 15-14834   Date Filed: 04/07/2017   Page: 1 of 5


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-14834
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:09-cr-00041-DHB-GRS-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

JONATHAN LUTHER JONES,
a.k.a. Black Dog,

                                                         Defendant-Appellant.

                      ________________________

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

                             (April 7, 2017)



Before HULL, WILSON, and EDMONDSON, Circuit Judges.
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PER CURIAM:



      Jonathan Luther Jones, 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. On appeal, in a pro se brief, Jones

argues that the district court erred by determining that Amendment 782 did not

apply to his sentence because the court’s finding, that the guideline range was

based upon Count 49 (the firearm offense) was factually inaccurate. He argues

that Amendment 782 is applicable to reduce his sentence, because he was

sentenced to a 190-month term on Count 38 (the drug offense) and to only 120

months on Count 49. We affirm the district court’s decision.

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

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

(11th Cir. 2013).

      A district court may modify a defendant’s term of imprisonment if the

defendant was sentenced based on a sentencing range that was later lowered by the

Sentencing Commission. 18 U.S.C. § 3582(c)(2). A reduction, however, must be

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

district court considers a § 3582(c)(2) motion, it must first recalculate the guideline

range under the amended guidelines. United States v. Bravo, 203 F.3d 778, 780


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(11th Cir. 2000). When recalculating the guideline range, it can only substitute the

amended guideline and must keep intact all other guideline decisions made during

the original sentencing. Id. A defendant is not eligible for a sentence reduction

under § 3582(c)(2) when an amendment listed in U.S.S.G. § 1B1.10(d) does not

lower the defendant’s guideline range. U.S.S.G. § 1B1.10(a)(2)(B). A district

court is not authorized to reduce a defendant’s sentence under § 3582(c)(2) where a

retroactively applicable Guidelines amendment reduces his base offense level but

does not alter the guideline range upon which his sentence was based. United

States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008).

      Section 5G1.2 of the Sentencing Guidelines provides that when a defendant

is sentenced on multiple counts of conviction, “if the sentence imposed on the

count carrying the highest statutory maximum is adequate to achieve the total

punishment, then the sentences on all counts shall run concurrently. . .” U.S.S.G.

§ 5G1.2(c). Amendment 782 provides a two-level reduction in the base offense

levels for most drug quantities listed in the Drug Quantity Table in U.S.S.G.

§ 2D1.1(c). Id. App. C, amend. 782.

      The district court did not err by denying Jones’s motion for a sentence

reduction: Amendment 782 did not lower his guideline range. Although the

presentence investigation report (“PSI”) calculated Jones’s base offense level for

Count 38 (the drug offense) under § 2D1.1, the grouping rules in §§ 3D1.2(c) and


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3D1.3(a) were applied and required the district court to use the higher of Jones’s

adjusted offense levels; the higher was his adjusted offense level on Count 49 (the

firearm offense) as the offense level for the grouped counts. Therefore, the district

court calculated his guideline range using his base offense level not under § 2D1.1,

but under § 2K2.1.

      Jones appears to attempt to argue that the district court had actually based

his guideline range on Count 38 (the drug offense) because it imposed a higher

190-month sentence on Count 38 and only a 120-month sentence on Count 49 (the

firearm offense). Thus, he argues, his guideline range is affected by Amendment

782. Jones’s argument is based on a misunderstanding, however. The district

court explained in its denial of Jones’s motion for reconsideration that it had

imposed -- as directed by § 5G1.2 -- a 190-month sentence on Count 38 (the drug

offense) to achieve a total punishment within the 188 to 235 month guideline

range, which the court had calculated based on Count 49: Count 38 had the higher

statutory maximum of the two counts. U.S.S.G. § 5G1.2(c). For Count 49, the

court imposed a lesser 120-month sentence, the statutory maximum for that

offense, to run concurrently, also in accordance with the Guidelines. U.S.S.G. §

5G1.2(c).

      Therefore, the court’s imposition of a higher sentence on the drug offense

than the firearm offense was a function of the drug offense’s higher statutory


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maximum and does not undermine that the guideline range was based on the

firearm count. Thus, Amendment 782 did not lower Jones’s applicable guideline

range because Amendment 782 did not change his base offense level under

§ 2K2.1. See Moore, 541 F.3d at 1330; U.S.S.G. § 1B1.10(a)(2)(B). Accordingly,

the district court correctly concluded that Jones was ineligible for a sentence

reduction based on Amendment 782 and we affirm.

      AFFIRMED.




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