     Case: 16-30784      Document: 00513965838         Page: 1    Date Filed: 04/24/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                    No. 16-30784
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                          April 24, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

FRED JOINER, III,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:06-CR-338-1


Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Fred Joiner, III, federal prisoner # 29993-034, appeals following the
district court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence
based on a recent amendment to the Sentencing Guidelines for drug offenses.
Joiner pleaded guilty to two counts of distributing five grams or more of crack
cocaine. Although the applicable guidelines range was the statutory minimum
of 120 months in prison, the district court determined that Joiner’s criminal


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 16-30784    Document: 00513965838       Page: 2   Date Filed: 04/24/2017


                                 No. 16-30784

history category was underrepresented and sentenced him to 180 months in
prison. Joiner now argues that under Amendment 782 to the Sentencing
Guidelines, he is entitled to a lower sentence.
      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence “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 pursuant to 28 U.S.C. [§] 994(o) . . . if such a
reduction is consistent with applicable policy statements issued by the
Sentencing Commission.” § 3582(c)(2). In determining whether to reduce a
sentence under § 3582(c)(2), the district court first considers whether the
defendant is eligible for a sentence modification; if so, the court must then
consider the applicable 18 U.S.C. § 3553(a) factors to decide whether a
reduction is warranted. Dillon v. United States, 560 U.S. 817, 826-27 (2010).
We review de novo whether the district court had authority to reduce a
sentence under § 3582(c)(2). United States v. Jones, 596 F.3d 273, 276 (5th Cir.
2010).
      Section 1B1.10 of the Sentencing Guidelines limits the circumstances
under which a defendant is entitled to a § 3582(c)(2) sentence reduction based
on retroactive guidelines amendments. Only an individual currently serving a
sentence determined by a guidelines sentencing range lowered by particular
listed amendments is potentially eligible. See U.S.S.G. § 1B1.10(a), p.s. Even
then, a reduction is not authorized if the amendment does not have the effect
of lowering the defendant’s applicable guidelines range because of the
operation of another guideline or statutory provision. § 1B1.10, p.s., comment.
(n.1(A)).
      In the instant case, Joiner’s applicable guidelines range would not be
reduced if Amendment 782 were applied to lower the base offense level for his



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                                No. 16-30784

distribution offenses because of the rules governing guidelines ranges below
the statutory minimum. See U.S.S.G. § 5G1.1(b). Joiner asserts that the
district court should apply the reduction to the guidelines range encompassing
the upward departure sentence imposed. However, the “applicable guideline
range” is defined as “the guideline range that corresponds to the offense level
and criminal history category determined pursuant to [U.S.S.G.] § 1B1.1(a),
which is determined before consideration of any departure provision in the
Guidelines Manual or any variance.” § 1B1.10, p.s., comment. (n.1(A)); see also
United States v. Carter, 595 F.3d 575, 577-81 (5th Cir. 2010) (finding that
§ 3582(c)(2) provided no authority for a district court to reduce a sentence
imposed below the statutory minimum, which was also the original applicable
guidelines range, because the amendment did not affect the applicable
guidelines range).   Consequently, the judgment of the district court is
AFFIRMED.




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