             Case: 14-15483    Date Filed: 09/23/2015   Page: 1 of 6


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 14-15483
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 0:13-cr-60208-WJZ-4

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

JEAN MICHEL,

                                                            Defendant-Appellant.

                        ________________________

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

                              (September 23, 2015)

Before MARCUS, ROSENBAUM and JULIE CARNES, Circuit Judges.

PER CURIAM:

     Jean Michel appeals the denial of his motion for a sentencing reduction

pursuant to 18 U.S.C. § 3582(c)(2) and U.S.S.G. Amendment 782. In January

2014, Michel pled guilty to one count of conspiracy to possess with intent to
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distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1)

and 846. The district court determined that Michel was responsible for 10.18

kilograms of cocaine, and it assigned a base offense level of 32, pursuant to §

2D1.1(c)(4) of the 2013 Sentencing Guidelines Manual. The court determined that

the “safety valve” provision in § 5C1.2 applied. As a result, it reduced Michel’s

offense level by two points, pursuant to § 2D1.1(b)(16), and it was authorized to

sentence him without regard to the ten-year statutory minimum. See 21 U.S.C. §

841(b)(1)(A). Pursuant to the plea agreement, the court also applied a two-point

minor role reduction and a one-point acceptance of responsibility reduction. See

U.S.S.G. §§ 3B1.2(b), 3E1.1. In addition, because Michel received a minor role

reduction and his base offense level was 32, he received an additional 2-point

reduction, pursuant to § 2D1.1(a)(5)(i). His resulting total offense level was 25.

With his criminal history category of I, Michel’s final guideline range was 57-71

months. The court imposed a guideline sentence of 60 months.

      In September 2014, Michel filed a pro se motion to reduce his sentence,

pursuant to § 3582(c)(2) and Amendment 782, arguing that Amendment 782

reduced his base offense level by 2 points, resulting in an amended guideline range

of 46-57 months.     The district court denied the motion, on the ground that

Amendment 782 did not lower Michel’s guideline range because, at the time of

sentencing, he received “an extra two-level reduction pursuant to [§


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2D1.1(a)(5)(i)].” After he filed his notice of appeal, Michel filed a motion for

appointment of counsel in the district court, and the district court granted the

motion. On appeal, Michel, through counsel, argues that the district court erred in

determining that Amendment 782 did not lower his guideline range.             After

thorough review, we affirm.

      We review de novo a district court’s conclusion that a defendant is ineligible

for a sentencing reduction under § 3582(c)(2). United States v. Glover, 686 F.3d

1203, 1206 (11th Cir. 2012).

      Under § 3582(c)(2), a district court may reduce the prison sentence 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 . . . if such a reduction is consistent with applicable policy statements

issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2); see also U.S.S.G.

§ 1B1.10(a)(1). For a defendant to be eligible for a reduction under § 3582(c)(2),

the Sentencing Commission must have amended the Guidelines, the amendment

must have lowered his guideline range, and the amendment must have been made

retroactively applicable. United States v. Berry, 701 F.3d 374, 376 (11th Cir.

2012); U.S.S.G. § 1B1.10(a)(2), (d), & comment. (n.1(A)). Amendment 782,

which became effective on November 1, 2014, provides a two-level reduction in

the base offense level for most drug quantities listed in § 2D1.1(c). U.S.S.G. App.


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C, amend. 782. Amendment 782 has been made retroactively applicable. Id., §

1B1.10(d).

      The Guidelines policy statement in § 1B1.10(b)(1) provides:

      In determining whether, and to what extent, a reduction in the defendant’s
      term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy
      statement is warranted, the court shall determine the amended guideline
      range that would have been applicable to the defendant if the [amendment]
      had been in effect at the time the defendant was sentenced. In making such
      determination, the court shall substitute only the [amendment] for the
      corresponding guideline provisions that were applied when the defendant
      was sentenced and shall leave all other guideline application decisions
      unaffected.

Id., § 1B1.10(b)(1).

      The application note to § 1B1.10 provides:

      [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 this policy statement
      if . . . an amendment . . . is applicable to the defendant but the amendment
      does not have the effect of lowering the defendant’s applicable guideline
      range because of the operation of another guideline or statutory provision
      (e.g., a statutory mandatory minimum term of imprisonment).

U.S.S.G. § 1B1.10, comment. (n.1(A)).

      We’ve explained that “[t]he purpose of § 3582(c)(2) is to give a defendant

the benefit of a retroactively applicable amendment to the guidelines.” Glover,

686 F.3d at 1206. It works by giving “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 same as the guidelines that applied after the

amendment.” Id. We’ve cautioned that the defendant “is not to receive a lower
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sentence than he would have received if the amendment had been in effect at the

time of his sentencing.” Id. In other words, “[t]he goal is to treat a defendant

sentenced before the amendment the same as those sentenced after the amendment.

Id. at 1206-08 (holding the defendant was ineligible for a sentencing reduction

under Amendment 750 because the amendment did not lower his guideline range,

which was determined by the statutory minimum sentence of life imprisonment).

      Here, we are unpersuaded by Michel’s argument that the district court erred

when it denied his motion for a sentence reduction and determined that he was no

longer eligible for the 2-point reduction in § 2D1.1(a)(5)(i). Michel is correct that

Amendment 782 did not amend § 2D1.1(a)(5)(i), under which he received a 2-

point reduction at his original sentencing proceeding, based on his receipt of a

minor role reduction under § 3B1.2 and his base offense level of 32 under the drug

quantity table in § 2D1.1(c).     However, in determining whether Michel was

eligible for a sentencing reduction based on Amendment 782, the district court was

required to “determine the amended guideline range that would have been

applicable to [him] if [Amendment 782] had been in effect at the time [he] was

sentenced.”   U.S.S.G. § 1B1.10(b)(1).       If Michel had been sentenced after

Amendment 782 went into effect, he would not have received a 2-point reduction

under § 2D1.1(a)(5)(i) because his base offense level under the drug quantity table

in § 2D1.1(c), based on his responsibility for 10.18 kilograms of cocaine, would


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have been 30. See U.S.S.G. App. C, amend. 782; id., § 2D1.1(c)(5) (2014).

Importantly, under § 2D1.1(c)(5), no reduction in base offense level is available if

a defendant’s offense level is less than level 32. See U.S.S.G. § 2D1.1(a)(5)(i)

(providing that a defendant’s base offense level is “[t]he offense level specified in

the Drug Quantity Table . . . , except that if (A) the defendant receives an

adjustment under § 3B1.2 (Mitigating Role); and (B) the base offense level” is

level 32 or greater, the offense level is decreased by two or more levels).

      Because Michel’s guideline range would not have been lower had he been

sentenced after Amendment 782 went into effect, he was not eligible for a

sentencing reduction based on the amendment. See U.S.S.G. § 1B1.10(a)(2)(B) &

comment. (n.1(A)); Berry, 701 F.3d at 376; Glover, 686 F.3d at 1206. Thus, the

district court did not err in denying his motion for a sentence reduction.

      AFFIRMED.




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