                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                   FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-12954                ELEVENTH CIRCUIT
                                                            JANUARY 4, 2010
                         Non-Argument Calendar
                                                              JOHN P. LEY
                       ________________________
                                                             ACTING CLERK

                D. C. Docket No. 03-00485-CR-T-17-MAP

UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellant,

                                  versus

JOHN GERONE THOMAS,

                                                          Defendant-Appellee.


                       ________________________

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

                             (January 4, 2010)

Before EDMONDSON, BIRCH and FAY, Circuit Judges.

PER CURIAM:
      The government appeals the district court’s grant of John Gerone Thomas’s

18 U.S.C. § 3582(c)(2) motion to reduce sentence. The government argues that the

district court lacked discretion to depart below the 10-year mandatory minimum

sentence required by 21 U.S.C. § 841(b)(1)(A)(iii). For the reasons set forth

below, we vacate Thomas’s sentence and remand to the district court.

                                          I.

      Pursuant to a written plea agreement, Thomas pled guilty to possession with

intent to distribute 50 grams or more of crack cocaine. The presentence

investigation report (“PSI”) initially set Thomas’s base offense level at 38, under

U.S.S.G. § 2D1.1(c)(1), because Thomas’s offense involved 4 kilograms of crack

cocaine. After applying a 2-point enhancement under § 2D1.1(b)(1), (possession

of a weapon during the offense), and a 3-level reduction under §§ 3E1.1(a) and

(b), (acceptance of responsibility), Thomas’s total offense level was set at 37.

Thomas’s four criminal history points placed him in criminal history category III.

His offense level of 37 combined with criminal history category III to yield a

guideline imprisonment range of 262 to 327 months. Pursuant to 21 U.S.C.

§ 841(b)(1)(A), Thomas was subject to a mandatory minimum of 10 years’

imprisonment.

      At sentencing, the court granted the government’s U.S.S.G. § 5K1.1 motion



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for a 4-level departure and then departed an additional 2 levels, reducing Thomas’s

offense level to 31 and his guideline imprisonment range to 135 to 168 months.

The court sentenced Thomas to 135 months’ imprisonment, to be followed by 5

years’ supervised release.

      On January 29, 2009, the district court, sua sponte, appointed a public

defender to represent Thomas, ordered the probation office to complete a

supplemental report addressing whether Thomas was eligible for a sentence

reduction under § 3582(c)(2) and Amendment 706, and ordered Thomas and the

government to file responses to the probation officer’s supplemental report.

      The government responded that Amendment 706 reduced Thomas’s original

offense level of 37 to 35 and his original guideline imprisonment of 262 to 327

months to 210 to 262 months. It asserted that, pursuant to § 1B1.10(b)(2)(B) and

§ 1B1.10, comment. (n.3), the court should recalculate Thomas’s total offense

level, then apply a departure comparable to the one Thomas originally received as

a result of the § 5K1.1 motion. The government noted that such a departure would

result in an amended guideline range of 108 to 135 months, but it noted that

Thomas was subject to a statutory mandatory minimum of 10 years’ (120 months)

imprisonment. The government stated that it would not oppose a reduction to 120

months’ imprisonment.



                                         3
      The district court issued an order reducing Thomas’s sentence to 100

months’ imprisonment. It noted that Thomas’s amended total offense level was 35,

his criminal history category remained III, and his amended guideline

imprisonment range was 210-262 months. The court explained that “[t]he previous

term of imprisonment was less than the guideline range applicable to the defendant

at the time of sentencing as a result of a departure or Rule 35 reduction and the

reduced sentence is comparably less than the amended guideline range.”

                                          II.

      We review de novo issues of legal interpretation in the § 3582(c)(2) context.

United States v. Williams, 549 F.3d 1337, 1338-39 (11th Cir. 2008). A district

court may modify a term of imprisonment in the case of a defendant who was

sentenced to a term of imprisonment based on a sentencing range that has

subsequently been lowered by the Sentencing Commission. 18 U.S.C.

§ 3582(c)(2).

                                         III.

      The district court correctly determined that Amendment 706 lowered

Thomas’s applicable guideline range. Because Thomas’s guideline range was

based on § 2D1.1, Amendment 706 reduced Thomas’s original base offense level

from 38 to 36, his total offense level from 37 to 35, and his original guideline



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imprisonment range from 262 to 327 months to 210 to 262 months. See U.S.S.G.,

App. C, Amend. 706 (amending U.S.S.G. § 2D1.1(c)(1)). We now address

whether the district court was authorized to reduce Thomas’s sentence as far as it

did.

       Any sentence reduction granted pursuant to § 3582(c)(2) must be “consistent

with applicable policy statements issued by the Sentencing Commission.” 18

U.S.C. § 3582(c)(2); see Williams, 549 F.3d at 1341 (stating that we “must treat

such commentary [in the policy statements] as binding”). The applicable policy

statement provides that “[i]f the original 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, a reduction comparably less than the amended

guideline range . . . may be appropriate.” U.S.S.G. § 1B1.10(b)(2)(B). The

commentary also provides the following example:

             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 defendant’s original term of
             imprisonment imposed was 56 months (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);
             and (C) the amended guideline range . . . is 57 to 71
             months, a reduction to a term of imprisonment of 46
             months (representing a reduction of approximately 20
             percent below the minimum term of imprisonment
             provided by the amended guideline range . . .) would

                                          5
             amount to a       comparable     reduction   and   may   be
             appropriate.


U.S.S.G. § 1B1.10, comment. (n.3).

      Applying Application Note 3 to Thomas’s case, the lowest sentence Thomas

could have received at resentencing would have been 108 months. Thomas’s

original 135-month sentence represented a 48 percent departure from the 262-

month low-end guideline sentence. Similarly, a 108-month sentence would

represent a 48 percent departure from the 210-month low-end amended guideline

sentence.

      More important than § 1B1.10, the statutory provision in 21 U.S.C.

§ 841(b)(1)(A)(iii) requires that Thomas is subject to a 10-year, or 120-month,

mandatory minimum sentence. See 21 U.S.C. § 841(b)(1)(A)(iii). Section 5K1.1

of the Guidelines states: “[u]pon motion of the government stating that the

defendant has provided substantial assistance in the investigation or prosecution of

another person who has committed an offense, the court may depart from the

guidelines.” U.S.S.G. § 5K1.1. Although a § 5K1.1 motion permits a court to

depart from the guidelines, we have held that a § 5K1.1 motion does not effectively

waive the statutory minimum to allow a district court to grant a § 3582 reduction

below that statutory minimum. See Williams, 549 F.3d at 1339 (holding that the



                                          6
district court was not permitted to grant the defendant a § 3582 sentence reduction

where the defendant had originally been sentenced below the statutory minimum,

because the statutory minimum, which effectively became the defendant’s

“guideline range,” was not reduced by Amendment 706). Under Williams, the

district court was not authorized to reduce Thomas’s sentence below the applicable

statutory minimum, even though the government filed a § 5K1.1 motion at the

original sentencing proceeding.

       We also note that binding precedent also forecloses any argument that

Booker and Kimbrough permit district courts to ignore statutory minimum

sentences in § 3582 proceedings. See United States v. Melvin, 556 F.3d 1190,

1192-93 (11th Cir.) (holding that Booker1 and Kimbrough2 apply to original

sentencing proceedings and do “not address motions to reduce a sentence under

§ 3582(c)(2)”), cert. denied, 129 S.Ct. 2382 (2009); see also United States v.

Castaing-Sosa, 530 F.3d 1358, 1362 (11th Cir. 2008) (holding that “the district

court remains bound by statutes designating mandatory minimum sentences even

after the remedial holding of [Booker]”). Finally, although the government did not

raise the issue on appeal, the district court abused its discretion in failing to state



       1
           United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
       2
           United States v. Kimbrough, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).

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that it had considered the 18 U.S.C. § 3553(a) sentencing factors in determining the

extent of Thomas’s sentence reduction. See United States v. Vautier, 144 F.3d 756,

760 (11th Cir. 1998) (stating that a district court must consider the § 3553(a)

factors to determine whether, and to what extent, to lower a defendant’s sentence).

Accordingly, we vacate Thomas’s sentence and remand to the district court.

      VACATED AND REMANDED.




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