                Case: 11-15933       Date Filed: 03/14/2013       Page: 1 of 15


                                                                                   [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 11-15933
                               ________________________

                         D.C. Docket No. 8:96-cr-00144-EAK-2

UNITED STATES OF AMERICA,

                                                                          Plaintiff - Appellee,

                                             versus

LOUIS JEAN HIPPOLYTE,

                                                                       Defendant - Appellant.
                               ________________________

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

                                     (March 14, 2013)


Before TJOFLAT and HILL, Circuit Judges and HUCK, ∗ District Judge.




       ∗
          Honorable Paul C. Huck, United States District Judge for the Southern District of
Florida, sitting by designation.
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TJOFLAT, Circuit Judge:

       On August 9, 1996, a jury found Louis Jean Hippolyte guilty on one count

of conspiracy to possess with intent to distribute crack cocaine (Count One), two

counts of distribution of crack cocaine (Counts Four and Five), one count of

possession of crack cocaine with intent to distribute (Count Seven), and one count

of possession of cocaine powder with intent to distribute (Count Six). 1 On

November 1, 1996, the District Court sentenced Hippolyte to concurrent prison

terms. On Counts One, Four, Five, and Seven, the court imposed on each count

the statutory mandatory minimum sentence of 240 months; 2 on Count Six, the

court imposed a concurrent term of 189 months. On October 28, 1997, this court

affirmed his convictions and sentences. United States v. Hippolyte, 130 F.3d 442

(11th Cir. 1997) (Table).

       On October 31, 2011, Hippolyte moved the District Court to reduce his

sentences on Counts One, Four, Five, and Seven pursuant to 18 U.S.C. §

3582(c)(2) based on Amendment 750 to the U.S. Sentencing Guidelines, which



       1
         Count One charged a violation of 21 U.S.C. § 846. Counts Four, Five, Six, and Seven
charged violations of 21 U.S.C. § 841(a).
       2
         See 21 U.S.C. § 841(b)(1)(A)(iii) (1996) (imposing a statutory mandatory minimum
sentence of 20 years’ imprisonment for any case involving at least 50 grams of crack cocaine
where the defendant has previously been convicted of a felony drug offense). Hippolyte had
previously been convicted of felony possession of marijuana and, at sentencing in the instant
case, was held accountable for 220 grams of crack cocaine.

                                              2
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lowered the base offense level for crack cocaine offenses,3 and the Fair Sentencing

Act of 2010 (the “FSA”), Pub. L. No. 111-220, 124 Stat. 2372. The District Court

denied his motion on the ground that because he had received the statutory

mandatory minimum sentence for his crack cocaine offenses, he was ineligible for

a sentence reduction under § 3582(c)(2). He appeals its decision. We affirm.

                                              I.

       Hippolyte argued in the District Court, as he does on appeal, that the FSA

applies in § 3582(c)(2) proceedings, such that the District Court had the authority

to reduce his sentences on Counts One, Four, Five, and Seven below the statutory

mandatory minimum. We disagree. To explain why, we revisit why and how the

District Court structured his sentences as it did in November 1996.

       The presentence investigation report (the “PSI”), which the District Court

adopted, determined that Hippolyte was responsible for 220 grams of crack

cocaine and 544.9 grams of powder cocaine. Because there was more than one

controlled substance at issue,4 the PSI applied the drug equivalency tables 5 and



       3
          18 U.S.C. § 3582(c)(2) allows a district court to reduce a defendant’s term of
imprisonment after sentencing “in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing
Commission. . . . [T]he court may reduce the term of imprisonment . . . if such a reduction is
consistent with applicable policy statements issued by the Sentencing Commission.”
        4
          See U.S.S.G. § 2D1.1 cmt. n.10 (1995). This application note provides a procedure for
finding a single offense level when there are two or more different controlled substances. Each
controlled substance is converted to its marijuana equivalent using the Drug Equivalency Tables
                                               3
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converted these amounts to the equivalent of 4,508.98 kilograms of marijuana.

This quantity resulted in a total offense level of 34. 6 Because Hippolyte had two

prior convictions for which he had received sentences of probation, he was

assigned criminal history category II. U.S.S.G. § 4A1.1(c) (1995). Under the

Sentencing Table, the sentence range for an offense level of 34 and criminal

history category II was 168 to 210 months’ imprisonment. U.S.S.G. Ch. 5, Pt. A

(1995). The statutory mandatory minimum sentence for crack cocaine offenses

controlled, so Hippolyte received sentences of 240 months’ imprisonment for each

of those offenses. See 21 U.S.C. § 841(b)(1)(A)(iii) (1996) 7; U.S.S.G. §

5G1.1(c)(2) (1995).

        If Amendment 750 were applied in his case, Hippolyte’s offense level

would be reduced from 34 to 30, 8 resulting in a new sentence range of 108 to 135



of U.S.S.G. § 2D1.1 cmt. n.10, then the marijuana equivalents are added to find a grand total,
which is then used to find the offense level in the Drug Quantity Table of U.S.S.G. § 2D1.1(c).
        5
          See U.S.S.G. § 2D1.1 cmt. n.10 (1995) Drug Equivalency Tables. One gram of crack
cocaine was the equivalent of twenty kilograms of marijuana and one gram of powder cocaine
was the equivalent of 200 grams of marijuana. As a result, the 220 grams of crack cocaine
attributed to Hippolyte were equivalent to 4,400 kilograms of marijuana, and the 544.9 grams of
powder cocaine attributed to Hippolyte were equivalent to 108.98 kilograms of marijuana, for a
grand total of 4,508.98 equivalent kilograms of marijuana.
        6
          See U.S.S.G. § 2D1.1(c)(3) (1995) Drug Quantity Table, assigning offense level 34 to
an amount of marijuana of “[a]t least 3,000 [kilograms] but less than 10,000 [kilograms].”
        7
          The statutory mandatory minimum sentence is 20 years’ imprisonment for any case
involving 50 grams or more of crack cocaine where the defendant has previously been convicted
of a felony drug offense. See Supra note 2.
        8
          Under Amendment 750, the marijuana-to-crack conversion ratio was reduced to 3,751-
to-1 from 20,000-to-1. See U.S.S.G. § 2D1.1 cmt. n.10(D) (2011). Thus, the 220 grams of crack
                                              4
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months’ imprisonment.9 And if the FSA were applied as well, the statutory

mandatory minimum for his crack cocaine offenses would be 120 months, 10

instead of 240 months, resulting in a new sentence range of 120 to 135 months.

                                              II.

       Hippolyte’s position is that both Amendment 750 and the FSA apply in his §

3582(c)(2) proceeding. He advances the novel argument that one of the changes

made by Amendment 759 to the Sentencing Guidelines, which became effective on

November 1, 2011, was to add a brand-new definition of “applicable guideline

range” to U.S.S.G. §1B1.10, and that this new definition significantly changes the

way sentencing reductions work under § 3582(c)(2), in Hippolyte’s favor. See

Amendment 759, U.S.S.G. App. C – Vol. III, at 416 (2011), codified at U.S.S.G. §

1B1.10 cmt. n.1(A) (2011). 11



cocaine attributed to Hippolyte would now be equivalent to 785.62 kilograms of marijuana. As
the marijuana-to-powder-cocaine conversion ratio remained constant at 200-to-1, id., the amount
of powder cocaine attributed to Hippolyte, 544.9 grams, would still be equivalent to 108.98
kilograms of marijuana. Thus, the total equivalent kilograms of marijuana would now be 894.6
kilograms. See U.S.S.G. § 2D1.1(c)(5) (2011) Drug Quantity Table, assigning offense level 30
to an amount of marijuana of “[a]t least 700 [kilograms] but less than 1,000 [kilograms].”
        9
          See U.S.S.G. Ch. 5, Pt. A (2011), which shows that for offense level 30 and criminal
history category II, the guideline range is 108 to 135 months’ imprisonment.
        10
           See 21 U.S.C. § 841(b)(1)(B)(iii) (2011) (imposing a statutory mandatory minimum
sentence of 10 years’ imprisonment for any case involving at least 28 grams but less than 280
grams of crack cocaine where the defendant has previously been convicted of a felony drug
offense). As noted, Hippolyte had previously been convicted of felony possession of marijuana
and was responsible for 220 grams of crack cocaine.
        11
           Amendment 759 also made four other changes to the Sentencing Guidelines. First, it
added Amendment 750 to § 1B1.10(c), thereby making Amendment 750’s application in §
                                               5
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       Hippolyte correctly points out that Amendment 759 defined the term

“applicable guideline range” for the first time ever in the Sentencing Guidelines.

Under Amendment 759, a defendant’s applicable guideline range is now defined as

“the guideline range that corresponds to the offense level and criminal history

category determined pursuant to § 1B1.1(a), which is determined before

consideration of any departure provision in the Guidelines Manual or any

variance.” U.S.S.G. § 1B1.10 cmt. n.1(A) (2011). Prior to Amendment 759, this

court had defined the “applicable guideline range” as “the scope of sentences

available to the district court, which could be limited by a statutorily imposed

mandatory minimum ‘guideline sentence.’” United States v. Williams, 549 F.3d

1337, 1340 (11th Cir. 2008). In other words, prior to Amendment 759 this court

defined “applicable guideline range” to include any applicable mandatory

minimum sentence. But now, Hippolyte argues, that definition and the cases based

on it are obsolete because the Sentencing Commission has, in Amendment 759,




3582(c)(2) proceedings retroactive. See infra note 12. Second, it made otherwise appropriate
sentence reductions inappropriate for defendants that originally received sentences below the
guideline range unless the departure below the guideline range was for “substantial assistance to
authorities” under U.S.S.G. § 5K1.1. Third, it added Application Note 6 to § 1B1.10’s
Commentary, see infra note 15, requiring courts to use the Sentencing Guidelines in force at the
time of a § 3582(c)(2) proceeding. Fourth, it added a sentence to § 1B1.10 explaining that the
Supreme Court has held that § 3582(c)(2) proceedings are not governed by United States v.
Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and that § 1B1.10 is binding on
the courts. See Dillon v. United States, __U.S.__, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010).
                                                6
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defined “applicable guideline range” to include only the offense level and criminal

history category, and to exclude any statutory mandatory minimums.

       This is important because Commentary Application Note 1(A) to U.S.S.G. §

1B1.10 says that “[e]ligibility for consideration under 18 U.S.C. § 3582(c)(2) is

triggered only by an amendment listed in subsection (c)12 that lowers the

applicable guideline range.” Hippolyte argues that in accordance with this

Application Note, he was eligible for consideration under § 3582(c)(2) because it is

undisputed that Amendment 750 lowered his applicable guideline range—as

Hippolyte defines it—from 168 to 210 months to 108 to 13513 months because

Amendment 750 lowered his offense level from 34 to 30.14 Thus, he argues that

because his applicable guideline range was lowered he is eligible for § 3582(c)(2)

relief. 15 And he argues that the FSA applies to § 3582(c)(2) proceedings. Thus,

the statutory mandatory minimum sentence applicable to his crack cocaine



       12
           Amendment 750 is listed in subsection (c).
       13
           See supra note 9, for explanation of why his guideline range is 108 to 135 months’
imprisonment under Amendment 750.
        14
           Hippolyte’s criminal history category remained the same at II. See supra note 8, for
calculations supporting the reduction in Hippolyte’s offense level from 34 to 30 under
Amendment 750.
        15
           Hippolyte also correctly points out that Amendment 759 also added a Commentary
Application Note 6 to U.S.S.G. § 1B1.10 requiring a court to use the version of the Sentencing
Guidelines that is in effect at the time of the sentence reduction proceedings. Thus, Hippolyte
argues, the District Court should have used the new definition of “applicable guideline range” in
Amendment 759, which became effective November 1, 2011, when it considered and denied
Hippolyte’s motion for a sentence reduction on November 29, 2011.
                                                7
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offenses is 120 months instead of 240,16 and his sentences should be reduced to a

term from 120 to 138 months.

       In Dorsey v. United States, __ U.S. __, 132 S.Ct. 2321, 183 L.Ed.2d 250

(2012), the Supreme Court held that the more lenient statutory mandatory

minimum sentences for drug convictions found in the FSA apply to defendants

who committed crimes before the FSA but were sentenced subsequent to its

enactment. In addition to reducing minimum sentences, the FSA also required the

Sentencing Commission to promptly issue “conforming amendments” that would

lower sentence ranges in such a way as to make them proportional to the new

mandatory minimum sentences. The Dorsey Court held that even though the

Savings Statute, 1 U.S.C. § 109, required application of the FSA to pre-Act

offenders to be express in the FSA, and the FSA was silent on the subject, there

was a “fair implication” that Congress’s goals of consistency, avoiding disparity,

and eliminating unfairness implied that it intended the new minimums to so apply

to make mandatory minimums and the new guideline sentence ranges proportional.

Dorsey, 132 S.Ct. at 2326. Hippolyte argues that just as in post-FSA sentencing

of pre-FSA offenders, Congress also intended that the FSA apply to drug crime

sentence reductions under § 3582(c)(2) for the same reasons articulated in Dorsey,


       16
          21 U.S.C. § 841(b)(1)(B)(iii) (2012); see supra note 10, for explanation of why
Hippolyte’s statutory mandatory minimum under the FSA is 10 years instead of 20.
                                               8
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and that therefore the statutory mandatory minimums found in the FSA must be

applied in conjunction with the retroactive guideline amendment that the FSA

directed the Sentencing Commission to promulgate. In sum, Hippolyte argues that

it would be inconsistent to apply the more lenient sentence ranges of Amendment

750, but keep the harsh pre-FSA mandatory minimums in § 3582(c)(2)

proceedings; they should thus be employed in tandem to eliminate disparities in

sentencing.

      Finally, Hippolyte argues that there is no case on point that applies to the

facts of his case. Hippolyte cites United States v. Berry, 701 F.3d 374 (11th Cir.

2012), in which this court affirmed the denial of a sentence reduction for Berry, a

career offender, see U.S.S.G. § 4B1.1, who was seeking application of the FSA in

a § 3582(c)(2) proceeding, as the closest case. But Hippolyte argues that Berry is

inapposite because Berry was a career offender, not a drug offender whose

sentence was determined by the statutory mandatory minimum provision of 21

U.S.C. § 841(b)(1). And he argues that Berry’s sentence was determined solely by

his status as a career offender; as such, Berry relied solely on the FSA in

attempting to get his sentence reduced under § 3582(c)(2). He argues that he,

unlike Berry, relies on the FSA and Amendment 750, which adjusts the applicable

guideline range and thus makes him eligible for a sentence reduction under §

3582(c)(2).
                                          9
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                                         III.

      A district court may modify a sentence if the defendant “has been 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). “The grounds

upon which a district court may reduce a defendant’s sentence pursuant to §

3582(c)(2) are quite narrow.” Berry, 701 F.3d at 376 (citing United States v.

Armstrong, 347 F.3d 905, 909 (11th Cir. 2003)). “The Sentencing Commission

must have amended the Sentencing Guidelines, pursuant to 28 U.S.C. § 994(o),

that guidelines amendment must have lowered the defendant’s sentencing range,

and it must be one that is listed in U.S.S.G. § 1B1.10(c).” Id. (citing 18 U.S.C. §

3582(c)(2); U.S.S.G. § 1B1.10(a)(1) & cmt. n.1(A); Armstrong, 347 F.3d at 909.).

      As explained in Berry, “where a retroactively applicable guideline

amendment reduces a defendant’s base offense level, but does not alter the

sentencing range upon which his or her sentence was based, § 3582(c)(2) does not

authorize a reduction in sentence.” Id. (quoting United States v. Moore, 541 F.3d

1323, 1330 (11th Cir. 2008); citing U.S.S.G. § 1B1.10(a)(2)(B)). “In other words,

a reduction is not authorized if the amendment does not actually lower a

defendant’s applicable guideline range ‘because of the operation of another

guideline or statutory provision,’ such as a statutory mandatory minimum prison

term.” Id. (quoting U.S.S.G. § 1B1.10 cmt. n.1(A)). So when a defendant’s
                                         10
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sentence is based on a statutory mandatory minimum under 21 U.S.C. § 841(b)(1)

that is above the applicable guideline range, “Amendment 750 does not lower that

guidelines sentence, and the defendant is not eligible for a § 3582(c)(2) sentence

reduction.” Id. (citing United States v. Glover, 686 F.3d 1203, 1207–08 (11th Cir.

2012)).

      To begin with, we are unpersuaded that Hippolyte’s interpretation of

Amendment 759’s new definition of applicable guideline range is correct.

Amendment 759 defines the applicable guideline range as “the guideline range that

corresponds to the offense level and criminal history category determined pursuant

to § 1B1.1(a), which is determined before consideration of any departure provision

in the Guidelines Manual or any variance.” U.S.S.G. §1B1.10 cmt. n.1(A) (2011).

Section 1B1.1(a) prescribes an eight-step procedure for determining the applicable

guideline range. Steps one through five determine the defendant’s offense level.

Step six determines the defendant’s criminal history category. Step seven directs

use of the Sentencing Table to find the guideline range by cross-referencing the

previously-determined offense level and criminal history category. Step eight

directs use of Chapter Five Parts B through G to determine various sentencing

requirements and options. Section 5G1.1(b) provides that “[w]here a statutorily

required minimum sentence is greater than the maximum of the applicable

guideline range, the statutorily required minimum sentence shall be the guideline
                                         11
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sentence.” U.S.S.G. § 5G1.1(b). Thus, when one uses § 1B1.1(a) to determine the

applicable guideline range, one necessarily is required to take into account the

mandatory minimum sentences that may be statutorily required.

      Further, the new definition of applicable guideline range found in

Amendment 759 nowhere mentions statutorily required mandatory minimum

sentences. It does say that the applicable guideline range should be calculated

“before consideration of any departure provision in the Guidelines Manual or any

variance.” U.S.S.G. § 1B1.10 cmt. n.1(A). But a mandatory minimum sentence is

neither a departure provision nor a variance. A departure provision is a change to a

sentencing guideline range based on, e.g., substantial assistance to authorities. See

U.S.S.G. § 5K1.1 (2011). A variance is a sentence imposed that is outside the

Guidelines Manual guideline range. See, e.g., Gall v. United States, 552 U.S. 38,

47, 128 S.Ct. 586, 594–95, 169 L.Ed.2d 445 (2007) (discussing variances, or

sentences outside the guideline range, and holding that there need not be

extraordinary circumstances to justify a variance). What is more, Amendment 759

itself explained 17 that the reason for adding the definition of applicable guideline

range to the Sentencing Guidelines was that there was a circuit split over which

specific departures should be considered part of the sentencing range. Several



      17
           See Amendment 759, U.S.S.G. App. C – Vol. III, at 421 (Nov. 2011).
                                              12
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courts of appeals had held that some departures were part of the applicable

guideline range, while others had held that no departures should be considered part

of the applicable guidelines range. 18 Amendment 759 issued to clear up this

confusion by specifying that no departures are part of the applicable guideline

range. In fine, it is clear that the new definition of applicable guideline range has

nothing to do with mandatory minimums and does nothing to alter this court’s rule

that the applicable guideline range is “the scope of sentences available to the

district court, which could be limited by a statutorily imposed mandatory minimum

‘guideline sentence.’” United States v. Williams, 549 F.3d 1337, 1340 (11th Cir.

2008). As a result, Hippolyte’s arguably creative argument to the contrary fails.

       Here, the District Court did not err in denying Hippolyte’s § 3582(c)(2)

motion. As noted supra, note 3, § 3582(c)(2) requires that any sentence reduction

be “consistent with applicable policy statements issued by the Sentencing

Commission.” The Sentencing Guidelines explain that a

       reduction in the defendant’s term of imprisonment is not authorized
       under 18 U.S.C. § 3582(c)(2) and is not consistent with th[e] policy
       statement if . . . an amendment . . . is applicable to a defendant but the
       amendment does not have the effect of lowering the defendant’s


       18
          Id. (“The First, Second, and Fourth Circuits have held that, for § 1B1.10 purposes, at
least some departures (e.g. departures under § 4A1.3 (Departures Based on Inadequacy of
Criminal History Category) (Policy Statement)) are considered before determining the applicable
guideline range, while the Sixth, Eighth, and Tenth Circuits have held that ‘the only applicable
guideline range is the one established before any departures.’”).
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      applicable guideline range because of the operation of another
      guideline or statutory provision (e.g., a statutory mandatory minimum
      term of imprisonment).

United States v. Glover, 686 F.3d 1203, 1206 (11th Cir. 2012) (emphasis in

original) (quoting U.S.S.G. § 1B1.10 cmt. n.1(A)). Amendment 750 has no effect

on Hippolyte’s sentence because it did not alter the statutory mandatory minimum

sentence Hippolyte received.

      As Berry explained, even if Hippolyte could bring his § 3582(c)(2) claim, it

would fail because the FSA does not apply retroactively to his 1996 sentence.

“Nothing in the FSA extinguishes the statutory mandatory minimum sentence or

penalty already imposed in Berry’s case before the FSA’s enactment. We agree

with every other circuit to address the issue that there is ‘no evidence that Congress

intended [the FSA] to apply to defendants who had been sentenced prior to the

August 3, 2010 date of the Act’s enactment.’”. Berry, 701 F.3d at 377 (quoting

United States v. Baptist, 646 F.3d 1225, 1229 (9th Cir. 2011) (citing cases)). Berry

explained that the general savings clause in 1 U.S.C. § 109 required the FSA to say

so expressly if it were to apply to defendants already sentenced. Berry also

interpreted Dorsey and found no suggestion in it “that the FSA’s new mandatory

minimums should apply to defendants, like Berry, who were sentenced long before

the FSA’s effective date.” Id. at 377. Berry quoted the Court’s statement in

Dorsey that “in federal sentencing the ordinary practice is to apply new penalties to
                                         14
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defendants not yet sentenced, while withholding that change from defendants

already sentenced.” Id. at 378.

      Hippolyte’s attempts to distinguish Berry are unavailing. First, Hippolyte

argues that Berry was a career offender under U.S.S.G. § 4A1.1, whereas

Hippolyte was sentenced under the statutory mandatory minimums of 21 U.S.C. §

841(b)(1). We held in United States v. Mills that such a distinction lacks

substance. 613 F.3d 1070, 1078 (11th Cir. 2010) (“Although Moore involved

defendants with career offender designations, those designations acted like

statutory mandatory minimums.”). Second, Hippolyte argues that Berry relied

solely on the FSA in advancing his § 3582(c)(2) claim, while Hippolyte advances

his claim under both the FSA and Amendment 750. But, as shown, Amendment

750 has no application here because it does not lower Hippolyte’s guidelines

sentence range. Thus, this distinction too lacks substance. Berry controls and we

follow it here.

      Because the FSA does not apply to Hippolyte’s case, the statutory

mandatory minimums that do are the ones that were in place when Hippolyte was

sentenced in 1996. Section § 3582(c)(2) does not authorize a sentence reduction if

a guidelines amendment does not have the effect of reducing the defendant’s

sentence. For the foregoing reasons, the judgment of the District Court is

      AFFIRMED.
                                           15
