                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                            No. 11-15903             MAY 21, 2012
                                        Non-Argument Calendar         JOHN LEY
                                      ________________________         CLERK

                              D.C. Docket No. 9:02-cr-80051-DTKH-2



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                               versus

JAMES LAWTON, JR.,
a.k.a. Jit,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

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

                                           (May 21, 2012)

Before DUBINA, Chief Judge, TJOFLAT and KRAVITCH, Circuit Judges.

PER CURIAM:
      Appellant James Lawton, Jr., through counsel, appeals the district court’s

denial of his motion to reduce sentence, filed pursuant to 18 U.S.C. § 3582(c)(2).

Lawton pled guilty to conspiracy to possess with intent to distribute over 50 grams

of cocaine base, in violation of 21 U.S.C. § 846, and carrying a firearm in relation

to a drug-trafficking offense, in violation of 18 U.S.C. § 924(c). Lawton originally

had been sentenced to 156 months’ imprisonment for the drug offense and a

consecutive 60-month term for the firearm offense, with this sentence including a

79-month downward departure based on the government’s substantial-assistance

motion. In 2008, Lawton filed his first § 3582(c)(2) motion pursuant to

Amendments 706 and 713 to the Sentencing Guidelines, which the district court

granted. The district court applied a percentage-based approach for calculating the

extent of the previous downward departure, and resentenced Lawton to 125

months’ imprisonment for the drug offense, which was below the amended range

of 188 to 235 months. Lawton subsequently filed a second § 3582(c)(2) motion

pursuant to Amendment 750, which the district court denied because it did not

lower his guideline range further. On appeal, Lawton asserts that, although

Amendment 750 does not reduce his guideline range, changes to U.S.S.G.

§ 1B1.10(b)(2)(B) support a reduction in his sentence because he should receive a




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flat reduction of the original 79-month amount of his downward departure, not just

a percentage of the departure from the guideline range.

      “[W]e review de novo the district court’s legal conclusions regarding the

scope of its authority under the Sentencing Guidelines.” United States v. Moore,

541 F.3d 1323, 1326 (11th Cir. 2008) (internal quotation marks omitted). Part A

of Amendment 750 amended § 2D1.1 by revising the Drug Quantity Table in

§ 2D1.1(c), and reducing offense levels associated with various amounts of crack

cocaine. U.S.S.G. App. C, Amend. 750, Pt. A, cross referencing U.S.S.G. App. C,

Amend. 748 (2011). Amendment 750 became effective on November 1, 2011.

U.S.S.G. App. C, Amend. 750.

      A district court may modify a defendant’s previously imposed imprisonment

sentence pursuant to § 3582(c)(2) if the relevant amendment is listed in U.S.S.G.

§ 1B1.10(c) and the reduction is consistent with the Guidelines’ policy statement.

U.S.S.G. § 1B1.10(a)(1). Parts A and C of Amendment 750 to the Guidelines may

serve as the basis for a sentence reduction. Id. § 1B1.10(c). Pursuant to § 1B1.10,

the applicable policy statements provide that a reduction in the imprisonment term

is not authorized if the amendment “does not have the effect of lowering the

defendant’s applicable guideline range.” Id. § 1B1.10(a)(2)(B).




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       The 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). First, the

court must recalculate the defendant’s sentence “by substituting the amended

guideline range for the originally applied guideline range, and then using that new

base level to determine what ultimate sentence it would have imposed.” Id. In

other words, “the court shall determine the amended guideline range that would

have been applicable to the defendant” if the applicable retroactive amendment

“had been in effect at the time the defendant was sentenced.” U.S.S.G. §

1B1.10(b)(1). All of the other guideline application decisions made during the

original sentencing proceeding remain unaffected. See Bravo, 203 F.3d at 780.

Under the second step, the court must decide whether to retain the original

sentence or to resentence the defendant under the amended guideline range. Id. at

781.

       The district court is required to apply the version of § 1B1.10 that is in

effect at the time that it rules on the § 3582 motion. U.S.S.G. § 1B1.10, comment.

(n.6) (Nov. 1, 2011). Amendment 759 made changes to § 1B1.10, which became

effective on November 1, 2011, and would apply to any § 3582(c)(2) motion

decided on or after that date. U.S.S.G. App. C, Amend. 759. Section 1B1.10 now

provides the following:

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      If the 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 pursuant to a government motion
      to reflect the defendant’s substantial assistance to authorities, a
      reduction comparably less than the amended guideline range
      determined under subdivision (1) of this subsection may be
      appropriate.

U.S.S.G. § 1B1.10(b)(2)(B). The commentary regarding this provision notes that

the district court is not limited by the guideline range if the defendant’s sentence

was reduced pursuant to a government motion for substantial assistance. Id.

§ 1B1.10, comment. (n.3). However, in describing what a “comparably less”

sentence would be, the commentary adopts a percentage-based approach, noting

that, if the original sentence was reduced by 20 percent, then the amended

sentence also may be reduced by 20 percent. Id.

      “[A] party seeking to raise a claim or issue on appeal must plainly and

prominently so indicate. Otherwise, the issue—even if properly preserved at

trial—will be considered abandoned.” United States v. Jernigan, 341 F.3d 1273,

1283 n.8 (11th Cir. 2003).

      As an initial matter, because Lawton does not challenge the district court’s

determination that Amendment 750 did not reduce his guideline range, he has

abandoned any challenge to this finding. Because Amendment 750 did not lower

Lawton’s guideline range, a reduction is not authorized. In addition, Lawton’s


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argument that the changes to § 1B1.10(b)(2)(B) create ambiguity on whether the

district court should have reduced his sentence by the original 79-month departure

fails because the commentary to that guideline specifically supports the district

court’s percentage-based approach in granting his prior § 3582(c)(2) motion.

Therefore, we conclude that the district court did not err in determining that

Lawton was ineligible for a reduced sentence because Amendment 750 did not

change his guideline range.

      AFFIRMED.




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