             Case: 15-13284     Date Filed: 01/07/2016   Page: 1 of 6


                                                             [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 15-13284
                            Non-Argument Calendar
                          ________________________

                       D.C. Docket No. 0:10-cr-60276-JIC-2



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                      versus

JOSE ALONSO ESCOBAR,

                                                             Defendant-Appellant.

                          ________________________

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

                                (January 7, 2016)

Before TJOFLAT, HULL and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:

     Jose Escobar appeals the denial of his 18 U.S.C. § 3582(c)(2) motion to

reduce his sentence.
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      In 2011, Escobar pled guilty to one count of conspiracy to possess with

intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A), 846. Under U.S.S.G. § 2D1.1(a)(5) of the 2010

Guidelines Manual, Escobar’s base offense level was set at 34 because the offense

involved at least 3 kilograms but less than 10 kilograms of heroin. After a two-

level enhancement, pursuant to § 2D1.1(b)(1), because a dangerous weapon was

possessed, a three-level role enhancement, pursuant to § 3B1.1(b), and a three-

level reduction for acceptance of responsibility, pursuant to § 3E1.1, Escobar’s

total offense level was 36. Based on a total offense level of 36 and a criminal

history category of II, his advisory guideline range was 210 to 262 months. At

sentencing, the district court applied a downward variance at the parties’ request

and sentenced Escobar to 168 months’ imprisonment.

      In April 2015, Escobar moved to reduce his sentence based on Amendment

782 to the Sentencing Guidelines, which lowered the base offense levels for most

drug offenses. The district court denied Escobar’s motion, stating that Escobar

was ineligible for a sentence reduction because the application of Amendment 782

would only reduce his guideline range to 168 to 210 months, and his original 168-

month sentence was at the bottom of that amended guideline range.




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      We review de novo a district court’s legal conclusions about the Sentencing

Guidelines and the scope of its authority under 18 U.S.C. § 3582(c)(2). United

States v. Liberse, 688 F.3d 1198, 1200 n.1 (11th Cir. 2012).

      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). Amendment 782 reduced by 2 levels the base offense levels

that apply to most drug offenses, including offenses involving at least 3 but less

than 10 kilograms of heroin. U.S.S.G. App. C, Amend. 782 (2014).

      A district court must follow a two-step process in ruling on a § 3582(c)(2)

motion. United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). At the first

step, the court must recalculate the defendant’s sentence by substituting the

amended guideline range for the originally applied guideline range. Id. At this

step, all other guideline application decisions made during the original sentencing

remain intact. Id.; see also U.S.S.G. § 1B1.10(b)(1) (stating that the court must

substitute only the relevant amendment into the court’s original guideline

calculations, and must “leave all other guideline application decisions unaffected”).

To be eligible for a reduction, the relevant amendment must lower the defendant’s

“applicable guideline range,” which is “the guideline range that corresponds to the

offense level and criminal history category determined pursuant to § 1B1.1(a),


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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)); see

also Bravo, 203 F.3d at 781 n.5 (stating that a decision to depart downward from

the original guideline range is not a guideline application decision that remains

intact when the court considers the new guideline range). At the second step, the

court must decide whether, in its discretion and in light of the 18 U.S.C. § 3553(a)

sentencing factors, to retain the original sentence or to resentence the defendant

under the amended guideline range. Bravo, 203 F.3d at 781.

      Unless a defendant’s original term of imprisonment was imposed below the

applicable guideline range pursuant to a motion to reflect the defendant’s

substantial assistance to the government, the district court may not reduce the

sentence under § 3582(c)(2) to a term that is below the amended guideline range.

U.S.S.G. § 1B1.10(b)(2)(A)-(B); United States v. Colon, 707 F.3d 1255, 1259

(11th Cir. 2013); see also U.S.S.G. § 1B1.10, comment. (n.3) (stating that the

exception only applies to reductions based on substantial assistance following a

government motion under U.S.S.G. § 5K1.1, 18 U.S.C. § 3553(e), or

Fed. R. Crim. P. 35(b)).

      A district court may apply a variance and impose a sentence outside of the

advisory guideline range if it finds that a variance is justified under the sentencing

factors set forth in 18 U.S.C. § 3553(a). United States v. Kapordelis, 569 F.3d


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1291, 1316 (11th Cir. 2009). Guided departures, which are departures specifically

provided for in the Sentencing Guidelines, also permit a district court to impose a

sentence outside of the advisory guideline range. United States v. Gibson, 434

F.3d 1234, 1252 (11th Cir. 2006).

      Here, the district court did not err in denying Escobar’s § 3582(c)(2) motion.

Escobar was ineligible for a sentence reduction because Amendment 782 would

only reduce his guideline range to 168 to 210 months, and he originally received a

168-month sentence and was not sentenced below the applicable guideline range

pursuant to a substantial assistance motion. See U.S.S.G. § 1B1.10(b)(2)(A)-(B);

Colon, 707 F.3d at 1259. To calculate the amended guideline range, Amendment

782 is substituted for the 2010 version of U.S.S.G. § 2D1.1, reducing the base

offense level from 34 to 32. See U.S.S.G. App. C, Amend. 782 (2014); see also

Bravo, 203 F.3d at 780; U.S.S.G. § 1B1.10(b)(1). Applying the same

enhancements and reductions that were applied at the original sentencing

hearing—a two-level enhancement because a dangerous weapon was possessed, a

three-level role enhancement, and a three-level reduction for acceptance of

responsibility—produces a new total offense level of 34. See Bravo, 203 F.3d at

780; U.S.S.G. § 1B1.10(b)(1). Thus, based on a new total offense level of 34 and a

criminal history category of II, Escobar’s amended guideline range is 168 to 210

months.


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       The district court’s decision to impose a variance at the original sentencing

hearing does not impact the calculation of the amended guideline range. See

U.S.S.G. § 1B1.10, comment. (n.1(A)). Although at one point during the hearing

the parties described the variance as a reduction in the offense level, the parties

stated that the presentence investigation report had correctly calculated the

guideline range at 210 to 262 months; the government stated that the variance or

reduction was based upon the 18 U.S.C. § 3553(a) factors; and the court found that

Escobar’s 168-month sentence served the objectives of § 3553(a). See Kapordelis,

569 F.3d at 1316. Even if Escobar were correct in his contention that the agreed-

upon reduction was a guided departure rather than a variance, the result is

unaffected, because a departure is not a guideline application decision that remains

unaffected and is part of the applicable guideline range. See U.S.S.G. § 1B1.10,

comment. (n.1(A)) & (n.3); Bravo, 203 F.3d at 781 n.5.

       AFFIRMED. 1




       1
        Escobar’s motion to file his reply brief out of time is GRANTED, though it does not
change this appeal’s disposition.
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