           Case: 15-11753    Date Filed: 11/30/2015   Page: 1 of 5


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-11753
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 0:04-cr-60004-DTKH-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

JEFFREY MICHAEL JENNEY,

                                                          Defendant-Appellant.

                      ________________________

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

                            (November 30, 2015)

Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      In March 2005, Jeffrey Jenney pled guilty to conspiracy to possess with

intent to distribute at least 1,000 kilograms of marijuana, in violation of 21 U.S.C.

§§ 846 and 841(b)(1)(A) (Count 3), conspiracy to commit money laundering, in

violation of 18 U.S.C. §§ 1956(h) and (a)(1)(A) (Count 4), and witness tampering,

in violation of 18 U.S.C. § 1512(b)(3) (Count 66). At sentencing, the District

Court determined that, under the Sentencing Guidelines, Jenney’s total offense

level was 38 and his criminal history category II, which yielded a sentence range of

262-327 months’ imprisonment. The court then sustained Jenney’s objection to

the criminal history category II on the ground that category II overstated the

seriousness of his criminal history and departed downward under U.S.S.G. § 4A1.3

to criminal history category I. This lowered the sentence range to 235-293 months.

Using that range, the court sentenced Jenney to concurrent sentences: 235 months

on Counts 3 and 4 and 120 months on Count 66.

      In January 2015, Jenney moved the District Court for a reduction of sentence

pursuant to 18 U.S.C. § 3582(c)(2), based on Amendment 782 to the Sentencing

Guidelines, arguing that the amendment reduced his total offense level to 36 and

that based on that level and criminal history category I, his sentence range would

be reduced to 188-235 months. The court rejected Jenney’s argument that it

should calculate his amended guideline sentence range based on a category I




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criminal history, but reduced his sentences on Counts 3 and 4 to 210 months’

imprisonment.

      Jenny appeals the reduced sentences on those two counts, arguing that the

court erred in using a criminal history category II, instead of a criminal history

category I, in calculating his amended sentence range. We reject his argument and

accordingly affirm.

      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 provides for a two-level reduction in the

base offense level for most drug offenses. U.S.S.G. App. C, amend. 782. Any

reduction, however, must be “consistent with applicable policy statements issued

by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The policy statements

provide that the court cannot reduce a defendant’s term of imprisonment under 18

U.S.C. § 3582(c)(2) “to a term that is less than the minimum of the amended

guideline range” unless the defendant received a departure for substantial

assistance. U.S.S.G. § 1B1.10(b)(2)(A) & (B).

      The commentary to U.S.S.G. § 1B1.10 provides that eligibility under 18

U.S.C. § 3582(c)(2) is triggered only if the amendment lowers the “applicable

guideline range”, that is, “the guideline range that corresponds to the offense level


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and criminal history category determined pursuant to § 1B1.1(a), which is

determined before consideration of any departure provision in the Guidelines

Manual or variance.” Id. § 1B1.10, comment. (n.1(A)). The commentary further

states that if the defendant received a term of imprisonment “outside the guideline

range at the time of sentencing, the limitation prohibiting” the court from reducing

the sentence below the amended guideline range still applies. Id. § 1B1.10,

comment. (n.3).

      Section 4A1.3 provides for departures based on the inadequacy of criminal

history. Id. § 4A1.3. A defendant may receive a downward departure if “reliable

information indicates that the defendant’s criminal history category substantially

over-represents the seriousness of the defendant’s criminal history category or the

likelihood the defendant will commit other crimes.” Id. § 4A1.3(b)(1).

      In 2011, the Sentencing Commission amended the commentary to § 1B1.10

to address a circuit split over which departures are considered part of the

“applicable guideline range” referred to in § 1B1.10. U.S.S.G. App. C, amend.

759 (Reasons for Amendment). Some circuits held that some departures, such as

departures under § 4A1.3 for inadequacy of criminal history, were part of the

applicable guideline range, while others held that no departures should be

considered part of the applicable guidelines range. Id. The Sentencing

Commission amended Application Note 1 to § 1B1.10 to clarify that the


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“applicable guideline range” is the range before any departure provision or

variance. Id. Accordingly, we have stated that, as a result of the amendment, a

§ 4A1.3 departure is not included in the “applicable guideline range” for the

purposes of § 3582(c)(2). United States v. Hargrove, 732 F.3d 1253, 1254 n.1

(11th Cir. 2013).

      The District Court did not err in using a criminal history category II to

calculate Jenney’s amended guideline sentence range. Jenney’s original sentence

range had a criminal history category of II, from which the court departed

downward pursuant to § 4A1.3. However, a § 4A1.3 departure is not included in

the applicable sentence range for the purposes of § 3582(c)(2). Hargrove, 732

F.3d at 1254 n.1; see also U.S.S.G. App. C, amend. 759 (Reasons for

Amendment). Pursuant to § 1B1.10(b)(2), the court cannot reduce a defendant’s

sentence to a term less than the amended guideline range. U.S.S.G.

§ 1B1.10(b)(2)(A). Thus, even though Jenney received a criminal history

departure in his original sentence, he cannot receive the departure here because any

further reduction beyond 210 months would result in a sentence below Jenney’s

amended sentence range of 210-262 months’ imprisonment. See id. § 1B1.10

comment. (n.3).

      AFFIRMED.




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