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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-15359
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 4:11-cr-10020-KMM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

JUAN GONZALEZ CASTANEDA,

                                                          Defendant-Appellant.

                       ________________________

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

                             (August 16, 2017)

Before MARCUS, ROSENBAUM, and FAY, Circuit Judges.

PER CURIAM:
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      Juan Castaneda, proceeding pro se, appeals the district court’s denial of his

motion to reduce his sentence, pursuant to 18 U.S.C. § 3582(c)(2), based on

Amendment 782 to the Sentencing Guidelines. The question whether Castaneda is

eligible for a sentence reduction under § 3582(c)(2) depends on the district court’s

basis for applying a two-level reduction to Castaneda’s offense level at his original

sentencing.

      If the basis for the reduction was a downward variance, as the government

asserts on appeal, Castaneda is not eligible for a sentence reduction because

variances are not considered when determining a defendant’s eligibility for

§ 3582(c)(2) relief. But if, as hinted at by the sentencing transcript, the court

applied a two-level reduction under U.S.S.G. § 2D1.1(b)(16) (2011), Castaneda is

eligible for § 3582(c)(2) relief because that reduction must be applied when

calculating his amended guideline range under U.S.S.G. § 1B1.10, and including

that reduction has the effect, in conjunction with Amendment 782, of lowering his

applicable guideline range.

      Because the record is unclear as to the basis for the two-level reduction, and

the district court did not address the issue in denying Castaneda’s § 3582(c)(2)

motion, we remand this case to the district court to resolve that question and, if

appropriate, reduce Castaneda’s sentence.

                                         I.


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      In January 2012, Castaneda pled guilty to conspiracy to possess five

kilograms or more of cocaine with intent to distribute while aboard a vessel subject

to the jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503 and

70506. Along with the plea agreement, he executed a factual proffer stating that

the amount of cocaine involved was 401 kilograms and that he was the captain of

the vessel.

      Castaneda’s plea hearing and sentencing were conducted as part of a single

proceeding. In other words, the district court sentenced Castaneda immediately

after accepting his guilty plea. The parties waived the preparation of a complete

presentence investigation report (“PSR”), and the court arranged prior to the

change-of-plea and sentencing proceeding to have an “abbreviated” PSR prepared.

      Using the 2011 Guidelines Manual, Castaneda’s PSR calculated a guideline

range of 210 to 262 months of imprisonment based on a total offense level of 37

and a criminal history category of I. Castaneda started with a base offense level of

38 because the offense involved over 150 kilograms of cocaine.             U.S.S.G.

§ 2D1.1(a)(5) & (c)(1) (2011). Two levels were added because he was the captain

of a drug-trafficking vessel, see id. §2D1.1(b)(3)(C), and three levels were

deducted for acceptance of responsibility, see id. § 3E1.1(a), (b).

      Although the PSR calculated a total offense level of 37, the district court

sentenced Castaneda using a total offense level of 35 and a corresponding


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guideline range of 168 to 210 months of imprisonment. For reasons explained

below, Castaneda’s current eligibility for a § 3582(c)(2) sentence reduction

depends on the basis for that two-level reduction, but the record is obscure on the

matter. The closest the transcript of sentencing comes to providing an answer is

the following exchange among the court, the probation officer, and counsel for

both parties:

      The Court: Okay. Now, in the case of Mr. Cast[a]neda the probation
      officer calculated the offense level of thirty-five from this category
      one the guideline Federal range of 210 months. Is that correct?

      Castaneda’s Counsel: Yes, your Honor.

      Government: Yes, your honor.

      ....

      Probation Officer: Your honor, I don't want to interrupt, but we
      calculated an offense level at thirty-seven.

      The Court: In the case of?

      Probation Officer: Mr. Cast[a]neda.

      The Court: Okay. Well, I thought that had been corrected. That is
      why I mentioned thirty-five.

      Government: The parties have agreed that 521.2 [sic] is applicable
      there, therefore, 2D1.1 gives him an additional --

      Probation Officer: I was not aware of that, your honor.

      The Court: All right. Okay. So, we’re all in agreement on that. . . .



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       After the district court confirmed that the parties and the court “agree[d] on a

guideline calculation,” Castaneda’s counsel requested a “sentence at the low end of

the guidelines which is 168 months.” The court sentenced Castaneda to 168

months of imprisonment.

       The discussion excerpted above is far from clear. But it does hint at the

basis for the court’s decision to sentence Castaneda at level 35 instead of level 37.

Notably, when the probation officer raised the issue that the PSR calculated a total

offense level of 37, the government offered the following as an apparent

explanation for the two-level reduction: “The parties have agreed that 521.2 [sic]

is applicable there, therefore, 2D1.1 gives him an additional --” There is no

§ 521.2 in the Guidelines Manual, of course, but there is a § 5C1.2, and,

significantly, that section works together with § 2D1.1 to allow for a two-level

reduction. Specifically, § 2D1.1(b)(16) (2011) 1 provides for a two-level reduction

if a defendant meets the five “safety valve” criteria set forth in § 5C1.2. So, the

government’s explanation at sentencing, with some limited additions and

alterations, could reasonably be interpreted as follows: “The parties have agreed

that § 5C1.2 is applicable here; therefore, § 2D1.1(b)(16) gives him an additional

reduction of two levels.”


       1
          This same provision is at § 2D1.1(b)(17) in the 2016 Guidelines Manual. All references
to “2D1.1(b)(16)” are to the 2011 Guidelines Manual, which is the version of the manual in
effect at the time of Castaneda’s sentencing.
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       Castaneda’s PSR was never amended to reflect the apparent change to his

offense level and guideline range, however, nor was the basis of the two-level

reduction otherwise memorialized in the record. So when Castaneda filed a motion

to reduce his sentence under 18 U.S.C. § 3582(c)(2) based on Amendment 782 to

the Sentencing Guidelines, which reduced by two levels the base offense levels for

most drug-trafficking crimes, the government responded that it was unable to

determine the basis for the court’s decision to sentence Castaneda at level 35

instead of level 37.2 And because it could not determine the basis for that decision,

the government did not incorporate the two-level reduction when calculating

Castaneda’s amended guideline range under Amendment 782.

       Using the guideline calculations reflected in the PSR, the government

reasoned that Amendment 782 would not have the effect of reducing Castaneda’s

guideline range: “If Amendment 782 is applied, the defendant would begin at

level 36 instead of 38 under 2D1.1, plus two for being the vessel’s captain (38),

minus 3 for timely acceptance, for a total offense level of 35 – which is where he is

now.” With no change to his guideline range, the government said it could not

“see how the court ha[d] jurisdiction” to reduce Castaneda’s sentence, even though

it acknowledged that the range produced by an additional two-level reduction (135

to 168 months) was “a reasonable sentencing range” for Castaneda.

       2
        The attorney who prepared the government’s response stated that he was not involved in
Castaneda’s sentencing, so he had no first-hand knowledge of the basis for the reduction.
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      The district court denied Castaneda’s § 3582(c)(2) motion. The court’s

order, like the government’s response, relies on the PSR’s guideline calculations

and does not address or incorporate the largely unexplained two-level reduction:

      According to his PSI Report, the defendant’s initial guideline range
      was based on drug quantity, producing a base offense level of 38.
      After adding two levels for being the vessel’s captain, and subtracting
      three for timely acceptance of responsibility, Castaneda was left with
      a total offense level of 37, with a sentencing range of 210 to 262
      months. If Amendment 782 is applied, Castaneda would begin at
      level 36, plus two for being the vessel’s captain, minus three for
      timely acceptance, for a total offense level of 35. An additional
      reduction of two levels, to 33, would give Castaneda a sentencing
      range of 135 to 168 months. Such a range, however, is below the
      now-amended range. This Court therefore lacks jurisdiction to reduce
      Castaneda’s sentence. Accordingly, the Motion to Reduce Sentence
      (ECF No. 202) is denied.

Castaneda now appeals the denial of his § 3582(c)(2) motion.

                                        II.

      We review de novo a district court’s legal conclusions as to the scope of its

authority under 18 U.S.C. § 3582(c)(2). United States v. Williams, 557 F.3d 1254,

1256 (11th Cir. 2009).

      A district court may modify a defendant’s term of imprisonment if the

defendant was sentenced based on a sentencing range that has since been lowered

by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Section § 3582(c)(2)

“gives the defendant an opportunity to receive the same sentence he would have

received if the guidelines that applied at the time of his sentencing had been the


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same as the guidelines that applied after the amendment.” United States v. Glover,

686 F.3d 1203, 1206 (11th Cir. 2012). Any reduction, however, must be consistent

with the Sentencing Commission’s policy statements. 18 U.S.C. § 3582(c)(2).

       In considering a § 3582(c)(2) motion, a district court must engage in a two-

part analysis. United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000); see also

Dillon v. United States, 560 U.S. 817, 826–27 (2010). At the first step, the court

determines whether a defendant is eligible for a sentence reduction. Then, “[i]f a

prisoner is eligible, the district court engages in the second step: it exercises its

discretion to decide whether, in consideration of the § 3553(a) factors, to reduce

the sentence and, if so, by how much within the authorized range.” United States

v. Gonzalez-Murillo, 852 F.3d 1329, 1335 (11th Cir. 2017). This appeal concerns

the first step only.

       To be eligible for a sentence reduction, the defendant must show that a

retroactive amendment has “the effect of lowering the defendant’s applicable

guideline range.” U.S.S.G. § 1B1.10(a)(1)–(2). To make that determination, the

court must calculate the guideline range that would have applied if the amendment

had been in effect at the time of sentencing. U.S.S.C. § 1B.10(b)(1). The court

must substitute only the amended guideline for the one originally used, leaving “all

other guideline application decisions unaffected.” U.S.S.G. § 1B1.10(b)(1); see

United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998).


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      The commentary to § 1B1.10, by which we are bound, provides further

guidance on calculating a defendant’s “applicable guideline range.” Gonzalez-

Murillo, 852 F.3d at 1336. It explains that the term “applicable guideline range”

means “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). Based on this definition, we have

stated that courts must apply “all eight steps of U.S.S.G. § 1B1.1(a) in order to

determine the amended guideline range under § 1B1.10(a)(1).” Gonzalez-Murillo,

852 F.3d at 1336. Departures or variances are excluded from the calculation of the

amended guideline range. See id.

      Here, there is no dispute that Amendment 782 is a retroactive amendment

which, based on a drug quantity of 401 kilograms of cocaine, reduced Castaneda’s

base offense level from 38 to 36. Compare U.S.S.G. § 2D1.1(c)(1) (2011), with

U.S.S.G. § 2D1.1(c)(2) (2016). And to calculate his amended guideline range, the

district court, as it did below, must continue to apply the two-level “captain”

enhancement, U.S.S.G. § 2D1.1(b)(3)(C), and the three-level reduction for

acceptance of responsibility, id. § 3E1.1. See U.S.S.G. § 1B1.10(b)(1).

      What is less clear is whether the district court must continue to apply the

unexplained two-level reduction that was applied at Castaneda’s original


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sentencing—reducing his total offense level from 37 to 35—when determining the

amended guideline range under Amendment 782. While the court must do so if the

reduction, which was not reflected in the PSR, was applied in determining “the

offense level . . . pursuant to § 1B1.1(a),” the reduction would properly have been

excluded from the calculation of the amended guideline range if, as the

government asserts, the district court applied a discretionary “two-level downward

variance” not based on any provision in the Sentencing Guidelines. See Gonzalez-

Murillo, 852 F.3d at 1336; U.S.S.G. § 1B1.10 cmt. n.1(A).

      If the government is correct that the two-level reduction was a variance from

the guideline range calculated in the PSR, Castaneda would not be eligible for a

sentence reduction because the applicable guideline range “is determined before

consideration of . . . any variance.” U.S.S.G. § 1B1.10 cmt. n.1(A). Before the

variance, Castaneda’s original total offense level would have been 37, with a

corresponding guideline range of 210 to 262 months. Amendment 782 would have

the effect of lowering his total offense level to 35, reducing his guideline range to

168 to 210 months. Because that is the same range used at his original sentencing

hearing, a sentence reduction would not be authorized because Amendment 782,

despite lowering his base offense level, “would not alter the sentencing range upon

which his . . . sentence was based.” United States v. Moore, 541 F.3d 1323, 1330

(11th Cir. 2008).


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      But if instead of a variance the court applied a two-level reduction based on

a provision in § 2D1.1, Castaneda would be eligible for a sentence reduction. As

noted above, the sentencing transcript indicates that the parties and the court

agreed on the application of a two-level reduction, which was not reflected in the

PSR, based on both “521.2” and “2D1.1.” We think the most likely possibility is

that the parties and the court agreed that Castaneda’s offense level should be

reduced by two levels under § 2D1.1(b)(16) because he met the five criteria under

§ 5C1.2. As a “specific offense characteristic,” § 2D1.1(b)(16) affects the offense

level and guideline range “determined pursuant to § 1B1.1(a).” See U.S.S.G.

§ 1B1.1(a)(2).   Therefore, if the court applied § 2D1.1(b)(16) at Castaneda’s

original sentencing, it must continue to apply that section when resolving his

§ 3582(c)(2) motion.

      Whether § 2D1.1(b)(16) (2011) was in fact applied at Castaneda’s original

sentencing is not for us to decide, however. The district court did not resolve this

issue in its order denying Castaneda’s § 3582(c)(2) motion, and the record is not so

clear that we can determine with certainty the basis for the two-level reduction.

Accordingly, we remand to the district court to make a factual finding as to the

basis for the two-level reduction. See Gonzalez-Murillo, 852 F.3d at 1339–40

(remanding for a factual finding necessary to determine a defendant eligibility for

§ 3582(c)(2) relief); United States v. Hamilton, 715 F.3d 328, 340–41 (11th Cir.


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2013) (same). Should the court determine that the reduction was a two-level

downward variance, as the government asserts on appeal, Castaneda is not eligible

for a sentence reduction. Alternatively, should the court determine that the two-

level reduction was under § 2D1.1(b)(16), or another provision in § 2D1.1,

Castaneda is eligible for a sentence reduction, and the court should proceed to the

second step and exercise its discretion to grant or deny relief based on the amended

guideline range, the § 3553(a) factors, and all applicable policy statements from

the Sentencing Commission.

      VACATED AND REMANDED.




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