         Case: 15-12322   Date Filed: 04/01/2016   Page: 1 of 17


                                                                   [PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-12322
                     ________________________

             D.C. Docket No. 6:12-cr-00205-RBD-GJK-1



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                 versus

ELADIO MARROQUIN-MEDINA,

                                                       Defendant-Appellant.

                     ________________________

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

                            (April 1, 2016)
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Before HULL, JULIE CARNES and BARKSDALE, * Circuit Judges.

HULL, Circuit Judge:

       Defendant Eladio Marroquin-Medina appeals the district court’s order ruling

on his motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and

Amendment 782 to the Sentencing Guidelines. Marroquin-Medina’s original 72-

month sentence represented a downward departure from his advisory guidelines

range of 87 to 108 months based on his substantial assistance to the government.

The district court applied a 3-level reduction in Marroquin-Medina’s offense level

in making this downward departure.

       In Marroquin-Medina’s subsequent §3582(c)(2) proceedings, the district

court applied Amendment 782 and recalculated his new advisory guidelines range

as 70 to 87 months. The district court then used a percentage-based approach to

reduce and determine Marroquin-Medina’s new sentence of 58 months. His appeal

presents the issue of whether, in § 3582(c)(2) proceedings, a percentage-based

approach is the only permissible method of calculating a comparable substantial

assistance departure under U.S.S.G. § 1B1.10(b)(2)(B).




       *
        Honorable Rhesa H. Barksdale, United States Circuit Judge for the Fifth Circuit, sitting
by designation.
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                                    I. BACKGROUND

A.     Conviction and Sentence

       In November 2012, Marroquin-Medina pleaded guilty to one count of

conspiracy to possess with the intent to distribute and to distribute 1,000 kilograms

or more of marijuana, in violation of 21 U.S.C. §§ 841(b)(1)(A)(vii) and 846

(Count 1), and one count of conspiracy to engage in money laundering, in violation

of 18 U.S.C. § 1956(h) (Count 2).

       The presentence investigation report (“PSI”) grouped Counts 1 and 2 and

recommended a base offense level of 30, pursuant to U.S.S.G. §§ 2S1.1(a)(1),

2D1.1(b)(16), and 2D1.1(c)(4) (the “Drug Quantity Table”). The PSI

recommended (1) a 2-level increase under U.S.S.G. § 2S1.1(b)(2)(B) because

Marroquin-Medina was convicted under 18 U.S.C. § 1956, and (2) a 3-level

reduction under U.S.S.G. § 3E1.1(a) and (b) for acceptance of responsibility and

cooperation with authorities.

       With this total offense level of 29 and a criminal history category of I,

Marroquin-Medina’s advisory guidelines range was 87 to 108 months’

imprisonment. 1


       1
        Although Count 1 carried a statutory minimum penalty of 120 months’ imprisonment,
the PSI provided that Marroquin-Medina was eligible for safety valve relief under 18 U.S.C.
§ 3553(f)(1)-(5), and, therefore, should be sentenced in accordance with the applicable advisory
guidelines range without regard to the statutory minimum sentence.


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      Prior to sentencing, the government filed a motion for a downward departure

under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) based on substantial assistance

Marroquin-Medina had provided. At sentencing, the district court granted the

government’s motion for a downward departure and reduced Marroquin-Medina’s

total offense level by 3 levels, resulting in a post-departure total offense level of

26. With a total offense level of 26 and a criminal history category of I,

Marroquin-Medina’s post-departure advisory guidelines range was 63 to 78

months’ imprisonment. The district court ultimately sentenced Marroquin-Medina

to a total sentence of 72 months’ imprisonment. Marroquin-Medina did not appeal

his convictions or his sentence.

B.    Section 3582(c)(2) Motion for Sentence Reduction

      In April 2015, Marroquin-Medina filed a motion for a sentence reduction

under 18 U.S.C. § 3582(c)(2) and Amendment 782 of the Sentencing Guidelines.

Amendment 782 reduced the offense levels in U.S.S.G. § 2D1.1(c)’s Drug

Quantity Table by 2 levels, which reduced the base offense level for most drug

offenses. See U.S.S.G. app. C, amend. 782.

      Under the new Drug Quantity Table, Marroquin-Medina’s amended total

offense level became 27, which meant that his amended guidelines range became

70 to 87 months’ imprisonment. Because the district court previously departed

downward under § 5K1.1 from his original advisory guidelines range due to his


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substantial assistance, Marroquin-Medina argued that the court should again depart

downward from his amended guidelines range to a degree comparable to the

original § 5K1.1 departure.

      Marroquin-Medina argued that the district court had discretion to exercise

various methods for determining what constituted a “comparable” downward

departure. Marroquin-Medina asked the district court to exercise its discretion and

use a “level-based approach” to determine the degree of its downward departure.

      According to Marroquin-Medina, under a “level-based approach,” the

district court would reduce his amended total offense level of 27 by 3 levels, just as

it had done for the § 5K1.1 departure at his original sentencing. With a post-

departure total offense level of 24 and a criminal history category of I, Marroquin-

Medina’s post-departure amended guidelines range would be 51 to 63 months’

imprisonment. Marroquin-Medina requested a reduced sentence of 51 months’

imprisonment, which was at the bottom end of his post-departure amended

guidelines range, as calculated using an offense-level-based approach.

      In response, the government agreed that Amendment 782 warranted a

reduction in Marroquin-Medina’s sentence, and that, under the new Drug Quantity

Table, his total offense level was 27 and his amended guidelines range was 70 to

87 months’ imprisonment. The government further agreed that a “comparable”

§ 5K1.1 departure from Marroquin-Medina’s amended guidelines range was


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appropriate. However, the government argued that the Sentencing Guidelines

Application Notes required that the district court use only a “percentage-based

approach” to determine the degree of its departure.

      According to the government, under a “percentage-based approach,” the

district court would depart downward from the bottom end of the amended

guidelines range by the same percentage it had departed downward under § 5K1.1

from the bottom end of the original guidelines range. The government argued that

Marroquin-Medina’s original 72-month sentence reflected a 17% downward

departure from the bottom end of his original advisory guidelines range of 87 to

108 months. The government asked the court to comparably reduce Marroquin-

Medina’s sentence by 17% from the bottom end of his amended guidelines range

of 70 to 87 months, which would result in to 58-month sentence.

      In a May 20, 2015 order, the district court granted Marroquin-Medina’s

motion for a sentence reduction. The district court acknowledged Marroquin-

Medina’s request that it employ an offense-level-based approach to determine the

appropriate degree of departure from the amended guidelines range. The district

court also acknowledged the government’s contention that the court “must use the

‘percentage-based approach,’” and the district court then did so. (emphasis added).

The district stated, “Upon consideration of USSG § 1B1.10(b)(2)(B), the Court

agrees with the Government and will apply a 17% reduction from the bottom of the


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amended guideline range, resulting in a term of imprisonment of 58 months.”

Accordingly, the district court reduced Marroquin-Medina’s sentence to 58

months.

         Marroquin-Medina has appealed from the district court’s imposition of the

58-month sentence, contending that the district court’s belief that it lacked

discretion to employ a method other than the percentage-based approach to

calculate his comparable substantial assistance reduction constitutes procedural

error.

                                   II. DISCUSSION

A.       Standard of Review

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

legal authority under 18 U.S.C. § 3582(c)(2). United States v. Colon, 707 F.3d

1255, 1258 (11th Cir. 2013). Likewise, we review de novo the district court’s

interpretation of the Sentencing Guidelines. United States v. Fulford, 662 F.3d

1174, 1177 (11th Cir. 2011). In interpreting the Guidelines, this Court begins by

looking to the language of the Guidelines, considering both the Guidelines

themselves and the commentary, and giving that language its ordinary and plain

meaning. Id.




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B.    Departures under U.S.S.G. § 5K1.1

      The Sentencing Guidelines contain a number of departure provisions.

Among them is § 5K1.1, which allows a departure from the advisory guidelines

range “[u]pon motion of the government stating that the defendant has provided

substantial assistance in the investigation or prosecution of another.” U.S.S.G.

§ 5K1.1 “Because § 5K1.1 is silent as to the methodology to be used in

determining the extent of a substantial assistance departure, the government has

discretion in recommending a methodology, and the district court has discretion in

deciding what methodology to use once it grants a motion for departure.” United

States v. Hayes, 762 F.3d 1300, 1303 (11th Cir. 2014). These methodologies

include offense-level-based reductions, month-based reductions, and percentage-

based reductions. Id. at 1303-04. A district court has discretion to use any of these

methodologies and to determine how much to depart when granting a § 5K1.1

motion.

C.    Section 3582(c)(2) and its Relevant Policy Statement

      Section § 3582(c)(2) provides that, where a defendant was sentenced to a

term of imprisonment based on a sentencing range that subsequently was lowered

by the Sentencing Commission though amendment, the district court “may” reduce

the defendant’s sentence if such a reduction is consistent with the Sentencing

Commission’s applicable policy statements. 18 U.S.C. § 3582(c)(2). The


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applicable policy statement is found at U.S.S.G. § 1B1.10. To determine the extent

of a reduction in the defendant’s term of imprisonment under § 3582(c)(2), the

district court “shall determine the amended guideline range that would have been

applicable to the defendant if the amendment[] . . . had been in effect at the time

the defendant was sentenced.” U.S.S.G. § 1B1.10(b)(1).

      Under § 1B1.10(b)(2)(A), district courts in § 3582(c)(2) proceedings are

generally prohibited from reducing the defendant’s sentence to a term that is less

than the bottom end of his amended guidelines range. Id. § 1B1.10(b)(2)(A);

Colon, 707 F.3d at 1259 (“The Commission amended § 1B1.10(b)(2) . . . to

prohibit § 3582(c)(2) reductions below a prisoner’s amended guidelines

range . . . .”); United States v. Smith, 568 F.3d 923, 929 (11th Cir. 2009) (“The

district court was bound by the policy statement contained in U.S.S.G.

§ 1B1.10(b)(2)(A) that, in considering an 18 U.S.C. § 3582(c)(2) motion, it may

not reduce a sentence below the amended guideline range.”).

      However, § 1B1.10(b)(2)(B), titled “Exception for Substantial Assistance,”

provides a limited exception to that general bottom-end restriction, stating:

      If the term of imprisonment imposed was less than the term of
      imprisonment provided by the guideline range applicable to the
      defendant at the time of sentencing pursuant to a government motion
      to reflect the defendant’s substantial assistance to authorities, a
      reduction comparably less than the amended guideline range . . . may
      be appropriate.



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Id. § 1B1.10(b)(2)(B) (emphasis added). Expressly included within this limited

exception are only government substantial assistance motions under U.S.S.G.

§ 5K1.1, 18 U.S.C. § 3553(e), and Rule 35(b) of the Federal Rules of Criminal

Procedure. See id. § 1B1.10 cmt. n.3; United States v. Liberse, 688 F.3d 1198,

1201 (11th Cir. 2012).

      Downward variances are not included in this limited exception. See

U.S.S.G. § 1B1.10(b)(2)(B) (providing an exception to this limitation only for “a

government motion to reflect the defendant’s substantial assistance”); see also

United States v. Taylor, ___ F.3d ___, No. 15-5930, 2016 WL 860340, at *3-4 (6th

Cir. Mar. 7, 2016) (holding that a § 3582(c)(2) movant who originally received a

below-guidelines sentence attributable to both a substantial assistance departure

and a non-assistance variance was only eligible for a reduction comparable to the

proportion attributable to her substantial assistance departure). If a district court

exercises its discretion to apply a comparable reduction to a § 3582(c)(2) movant’s

amended guidelines range, that reduction may only account for a prior substantial

assistance departure from the original guidelines range, and may not account for a

downward variance from the same.

      Thus, where the district court previously departed downward from the

defendant’s original advisory guidelines range under U.S.S.G. § 5K1.1 due to the

defendant’s substantial assistance to the government, the court in a § 3582(c)(2)


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proceeding “may” depart downward from the defendant’s amended guidelines

range to a degree comparable to the original § 5K1.1 departure. See U.S.S.G.

§ 1B1.10(b)(2)(B); see also Liberse, 688 F.3d at 1201. While there is no

requirement that the district court must depart again, it may apply “a reduction

comparably less than the amended guideline range.” U.S.S.G. § 1B1.10(b)(2)(B).

      The Application Notes to § 1B1.10 provide the following examples of how

subsection (b)(2)(A) applies and then how subsection (b)(2)(B) as “an exception”

would apply:

      [Under subsection (b)(2)(A),] in a case in which: (A) the guideline
      range applicable to the defendant at the time of sentencing was 70 to
      87 months; (B) the term of imprisonment imposed was 70 months;
      and (C) the amended guideline range determined under subsection
      (b)(1) is 51 to 63 months, the court may reduce the defendant’s term
      of imprisonment, but shall not reduce it to a term less than 51 months.

      ....

      Subsection (b)(2)(B) provides an exception to this limitation . . . . In
      such a case, the court may reduce the defendant’s term, but the
      reduction is not limited by subsection (b)(2)(A) to the minimum of the
      amended guideline range. Instead, as provided in subsection
      (b)(2)(B), the court may, if appropriate, provide a reduction
      comparably less than the amended guideline range. Thus, if the term
      of imprisonment imposed in the example provided above was 56
      months pursuant to a government motion to reflect the defendant’s
      substantial assistance to authorities (representing a downward
      departure of 20 percent below the minimum term of imprisonment
      provided by the guideline range applicable to the defendant at the time
      of sentencing), a reduction to a term of imprisonment of 41 months
      (representing a reduction of approximately 20 percent below the
      minimum term of imprisonment provided by the amended guideline


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      range) would amount to a comparable reduction and may be
      appropriate.

U.S.S.G. § 1B1.10 cmt. n.3. The Application Notes go on to state, “Subject to

these limitations, the sentencing court has the discretion to determine whether, and

to what extent, to reduce a term of imprisonment under this section.” Id.

      With this background we turn to what method a district court may use to

make a comparable substantial assistance reduction.

D.    Calculating Substantial Assistance Departures in § 3582(c)(2)
      Proceedings

      Where a district court exercises its discretion to apply a comparable

substantial assistance reduction in a § 3582(c)(2) proceeding, this Court has never

addressed whether the Application Notes to U.S.S.G. § 1B1.10 require the district

court to employ only the percentage-based approach. For several reasons, we

conclude that the district court may apply the percentage-based approach outlined

in the Application Notes to U.S.S.G. § 1B1.10, but that is not the only permissible

approach to determine a comparable reduction under § 1B1.10(b)(2)(B).

      First, the plain language of § 1B1.10(b)(2)(B) does not require a district

court to employ any particular methodology to calculate the extent of a comparable

substantial assistance reduction. Rather, § 1B1.10(b)(2)(B) simply provides that “a

reduction comparably less than the amended guideline range . . . may be

appropriate,” but remains silent regarding the methodology used to determine what


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constitutes a “comparably less” reduction. U.S.S.G. § 1B1.10(b)(2)(B). Thus, the

plain language of the relevant policy statement does not explicitly impose a

restriction on the method used to determine a comparable reduction. This omission

is noteworthy given that district courts have substantial discretion to employ

various methodologies for calculating the degree of a § 5K1.1 departure in the

original sentencing proceedings. See Hayes, 762 F.3d at 1303.

      Second, we do recognize that Application Note 3 contains an illustration that

uses the percentage-based approach as an example of a proper method for

calculating a comparable substantial assistance reduction. However, Application

Note 3 does not state that a percentage-based approach is the only permissible

method for calculating a comparable reduction. Nor does it preclude the use of

other methods. Rather, it simply states that a reduction of a similar percentage

“would amount to a comparable reduction and may be appropriate.” U.S.S.G.

§ 1B1.10 cmt. n.3. (emphasis added).

      Third, the overall context of Application Note 3 supports our conclusion. In

the example contained in Application Note 3, the Sentencing Commission implies

that the district court used a percentage-based approach to calculate the degree of

its original § 5K1.1 departure. See id. § 1B1.10 cmt. n.3 (noting that the original

sentence “represent[ed] a downward departure of 20 percent below the minimum

term of imprisonment provided by the guideline range”). It makes sense, then, that


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the Sentencing Commission would point out that employing the percentage-based

approach again in a subsequent § 3582(c)(2) proceeding would result in a

comparable reduction. This does not mean, however, that the Sentencing

Commission believes that the percentage-based approach is the only permissible

method of calculating a comparable reduction in a § 3582(c)(2) proceeding. The

government is flatly wrong in its restrictive reading of Application Note 3.

      Ultimately, Application Note 3 serves as a non-exhaustive example of one

reasonable method that may be used to calculate the degree of a substantial

assistance reduction from an amended guidelines range. See id. § 1B1.10 cmt. nn.

3-4. In other words, while the percentage-based approach is a reasonable method,

it is not the only reasonable method for calculating a comparable reduction.

      The government argues that the phrase “[s]ubject to these limitations” in

Application Note 3 indicates that the percentage-based example is meant to limit

the court’s discretion to only that method. Reading that phrase in context,

however, it appears that the “limitations” to which it refers are: (1) the limitation in

§ 1B1.10(b)(2)(A) that courts ordinarily “shall not reduce” the defendant’s

sentence to a term less than the bottom end of the amended guidelines range—to

which § 1B1.10(b)(2)(B) is an exception—and (2) the limitation in

§ 1B1.10(b)(2)(C) that the defendant’s term may not be reduced below time

served. See U.S.S.G. § 1B1.10 cmt. n.3. Thus, the phrase “[s]ubject to these


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limitations,” when read in conjunction with the remainder of Application Note 3,

does not suggest that the percentage-based example provided is intended to

constrain the court’s discretion. See id.

      In sum, U.S.S.G. § 1B1.10(b)(2)(B) grants the sentencing court in a

§ 3582(c)(2) proceeding the discretion to comparably reduce a defendant’s

sentence where that defendant previously received a § 5K1.1 departure at his

original sentencing. The sentencing court “may” make a comparable substantial

assistance reduction but is not required to make one at all. If a sentencing court

chooses to exercise its discretion and make a comparable reduction, it is not bound

to use the percentage-based approach—or any one specific method—to calculate

the comparable reduction. Rather, the court may use any of the reasonable

methods that were available to calculate the original § 5K1.1 departure, so long as

they result in a comparable reduction. The court is not required to use the same

method again. But where the sentencing court in a § 3582(c)(2) proceeding

employs the same methodology to calculate a reduction that it employed when

calculating the degree of the original § 5K1.1 departure, the sentencing court’s

calculations will usually result in a comparable reduction for the purposes of

§ 1B1.10(b)(2)(B).




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E.    Application to Marroquin-Medina’s Appeal

      By agreeing with the government’s position that it “must” use a percentage-

based approach to calculate the degree of Marroquin-Medina’s comparable

reduction, it is evident that the district court did not believe that it had discretion to

use a method other than the percentage-based approach. In light of our holding,

the district court’s mistaken belief about the limitation of its discretion constitutes

procedural error. The district court did not state, hint, or suggest that it would still

sentence Marroquin-Medina to 58 months, regardless of the method used, or that

there were any reasons for the 58-month sentence other than a percentage-based

substantial assistance reduction. Thus, the procedural error here was not harmless.

      That said, nothing in this opinion should be construed as a substantive

criticism of the percentage-based approach employed by the district court. The

district court did not err by employing an unreasonable methodology. Rather, it

erred by incorrectly concluding that the percentage-based approach was the only

permissible method of calculating a comparable reduction under

§ 1B1.10(b)(2)(B). On remand, the district court may very well employ the exact

same percentage-based approach to calculate the comparable reduction applicable

to Marroquin-Medina’s amended sentence, should it so choose. However, it must

not do so under the incorrect assumption that other reasonable methods, such as

Marroquin-Medina’s offense-level-based approach, are legally foreclosed from


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consideration. Moreover, whatever method the district court chooses, it must

result in a comparable reduction.

                               III. CONCLUSION

      In light of the foregoing, we vacate the district court’s May 20, 2015 order

and remand this case to the district court for resentencing under 18 U.S.C.

§ 3582(c)(2). Nothing herein should be read as expressing any opinion as to the

appropriate final amended sentence.

      VACATED AND REMANDED.




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