           Case: 15-11074    Date Filed: 09/23/2015   Page: 1 of 4


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-11074
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 9:12-cr-80211-DTKH-14



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

KIRK IRWIN PIERCE, JR.,

                                                          Defendant-Appellant.

                      ________________________

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

                            (September 23, 2015)

Before WILSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Kirk Irwin Pierce, Jr., proceeding pro se, appeals the district court’s denial

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

Amendment 782 to the Sentencing Guidelines, after the district court concluded

that it lacked authority under § 3582(c)(2) to reduce Pierce’s sentence because, due

to a downward variance imposed by the district court at Pierce’s original

sentencing, his sentence was below the minimum of his amended guideline range.

On appeal, Pierce asserts that, a conflict between U.S.S.G. §§ 1B1.10(b)(1) and

1B1.10(b)(2) creates an ambiguity that the district court should have resolved in

his favor by applying the rule of lenity. Specifically, relying on Freeman v. United

States, 564 U.S. ___, 131 S. Ct. 2685 (2011), he contends that all downward

departures and variances made by the district court during the original sentencing

must remain unaffected when arriving at a new sentence for purposes of a

§ 3582(c)(2) motion. In addition, he asserts that the language in

§ 1B1.10(b)(2)(B), which creates an exception to the limitation found in

§ 1B1.10(b)(2)(A) for defendants who received a downward departure based on

substantial assistance, is discriminatory in nature against defendants who did not

cooperate and creates a disparity between classes of defendants.

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

of its authority under § 3582(c)(2). United States v. Lawson, 686 F.3d 1317, 1319

(11th Cir. 2012) (per curiam).


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      Pierce asserts that an ambiguity arises when § 1B1.10(b)(1) and (b)(2) are

read together because the former creates a rule that guideline application decisions

not affected by an amendment—including the downward variance he received at

his original sentencing—are to be left unaffected, while the latter does not allow

the prisoner to benefit from departures and variances from the original sentencing.

In other words, according to Pierce, § 1B1.10(b)(2) here nullifies what §

1B1.10(b)(1) requires to be left “unaffected” because he will not receive the

benefit of a downward variance comparable to the one he received at his original

sentencing. However, the variance from which Pierce seeks to benefit and

application of which was barred by § 1B1.10(b)(2) was not a “guideline

application decision,” as variances are imposed after the applicable guideline range

is set. Thus, § 1B1.10(b)(2) only limits the district court’s authority by prohibiting

most variances to a sentence below the amended guidelines range, or lower the

original sentence if it is already below the amended guidelines range. Because we

can resolve the purported conflict, this case does not present us with a “grievous

ambiguity or uncertainty in the statute” that would compel us to invoke the rule of

lenity. See Muscarello v. United States, 524 U.S. 125, 138–39, 118 S. Ct. 1911,

1919 (1998) (internal quotation marks omitted).

      Pierce alternatively argues that the exception to the § 1B1.10(b)(2) limitation

for substantial assistance to the authorities is discriminatory. He does not explain,


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however, why discriminating between defendants who are granted variances for

substantial assistance and those who receive other variances is improper.

       Accordingly, upon review of the entire record on appeal, and after

consideration of the parties’ briefs, 1 we affirm.

       AFFIRMED.




       1
         Pierce moved, unopposed, to file his reply brief out of time. We grant that motion,
though it does not change this appeal’s disposition.
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