             Case: 13-14840    Date Filed: 04/09/2014   Page: 1 of 8


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-14840
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 3:09-cr-00009-TJC-TEM-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

DWAYNE KEITH WRIGHT,

                                                            Defendant-Appellant.

                         ________________________

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

                                 (April 9, 2014)

Before TJOFLAT, MARCUS and JORDAN, Circuit Judges.

PER CURIAM:

      Dwayne Wright appeals the district court’s denial of his motion for a

sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 750 to the

Sentencing Guidelines. Wright is currently serving a total 84-month sentence that
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includes 24 months for his convictions for possession of a firearm by a convicted

felon (Count 4) and possession with intent to distribute cocaine and five or more

grams of cocaine base (Count 6); and a mandatory consecutive 5-year sentence for

his conviction for possession of a firearm in furtherance of a drug trafficking crime

(Count 7). Wright’s 24-month sentence was below his advisory guideline range of

100 to 125 months, based on both a U.S.S.G. § 5K1.1 substantial assistance

departure and an 18 U.S.C. § 3553(a) variance, although the sentencing court did

not indicate to what extent its sentence accounted for each of these grounds. In

this appeal from the order denying his § 3582(c)(2) motion, Wright argues that: (1)

the rule of lenity requires a § 3582(c)(2) reduction in his favor because § 1B1.10(b)

is ambiguous regarding what to do in his factual situation -- where it is unclear

how the district court calculated his sentence, and where a § 5K1.1 departure of 11

or more levels at his original sentencing would mean that his applicable guideline

range was lowered by Amendment 750; and (2) U.S.S.G. § 1B1.10(b)(2), as

amended by Amendment 759 to the Sentencing Guidelines, violated the Ex Post

Facto Clause, exceeded the U.S. Sentencing Commission’s authority, and violated

the separation of powers doctrine. After thorough review, we affirm.

      We review de novo the district court’s legal conclusions regarding the scope

of its authority under § 3582(c)(2). United States v. Lawson, 686 F.3d 1317, 1319

(11th Cir. 2012). We are bound by the opinion of a prior panel unless the Supreme


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Court or this Court sitting en banc overrules that opinion. Id. The defendant bears

the burden of establishing that a retroactive amendment actually lowers his

guidelines range. United States v. Hamilton, 715 F.3d 328, 337 (11th Cir. 2013).

      A district court may modify a term of imprisonment “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.”     18 U.S.C. § 3582(c)(2).     The amendment relied upon for §

3582(c)(2) relief must lower the “applicable guideline range,” which is “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, comment. (n.1(A)). If the amendment lowers the defendant’s guideline

range, the district court may resentence the defendant, but it may not sentence the

defendant to a sentence that is below the low end of the amended guideline range.

Id. § 1B1.10(a), (b)(2)(A). However, the Guidelines provide an exception to this

rule and allow the district court to reduce the defendant’s sentence below the

amended range if the original sentence imposed was below the applicable guideline

range because of a reduction based upon the defendant’s substantial assistance to

authorities. Id. § 1B1.10(b)(2)(B). This exception only applies to reductions based




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on substantial assistance following a government motion pursuant to § 5K1.1, 18

U.S.C. § 3553(e), or Fed.R.Crim.P. 35(b). Id. § 1B1.10, comment. (n.3).

      Prior to 2011, the exception in § 1B1.10(b)(2)(B) permitted the district court

to reduce a defendant’s sentence below the amended guideline range if the original

term of imprisonment was below the applicable guideline range, and was not

limited to below-guidelines sentences based on substantial assistance departures.

See U.S.S.G. § 1B1.10(b)(2) (2010). Enacted in 2011, Amendment 759 revised

the policy statement located in § 1B1.10 governing motions for sentence

reductions under § 3582(c)(2) and restricted the district court’s discretion to reduce

a sentence below the amended guideline range except for a comparable reduction

when the defendant originally received a below range sentence based on

substantial assistance. U.S.S.G. App. C, amend. 759 (2011).

      In United States v. Colon, an appeal from a denial of a § 3582(c)(2) motion

pursuant to Amendment 750, we addressed an appellant’s arguments regarding the

legality of Amendment 759. 707 F.3d 1255, 1257-58 (11th Cir. 2013). First, we

held that Amendment 759 did not violate the Ex Post Facto Clause because

Amendment 759’s restriction on the district court’s discretion did not increase the

appellant’s punishment above what it was at the time the she committed her

crimes. Id. at 1258-59. Second, we concluded that the Sentencing Commission

did not exceed its authority under the Sentencing Reform Act, 28 U.S.C. § 994, by


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amending § 1B1.10(b) through Amendment 759, because § 994(a) gave the

Commission authority to issue policy statements governing sentencing reductions,

and § 994(u) required the Commission to specify the circumstances in which a

sentence may be reduced based on a retroactive amendment to the Sentencing

Guidelines. Id. at 1259-60. Furthermore, we said that § 1B1.10(b) does not

override a court’s decision to vary downward at the original sentencing

proceeding, but instead limits the court’s discretion to award a new variance in a §

3582(c)(2) proceeding. Id. at 1260. Third, we held that Amendment 759 did not

violate the separation of powers doctrine because “nothing in § 1B1.10(b) requires

a court to undo its original sentencing determinations.” Id. Instead, § 1B1.10(b)

limits the court’s discretion in applying Amendment 750 to previous sentences, a

limitation that Congress authorized the Commission to impose. Id.

      To determine a base offense level for an offense that involved different

controlled substances, each substance is to be converted to its marijuana

equivalent, the quantities are to be added together, and then the offense level is to

be determined based on reference to the Drug Quantity Table. See U.S.S.G. §

2D1.1, comment. (n.8(B)) (2012). Pursuant to the 2008 Guidelines, under which

Wright initially was sentenced, 1 gram of crack cocaine was equivalent to 20

kilograms of marijuana. U.S.S.G. § 2D1.1, comment. (n.10(E)) (2008). One gram

of powder cocaine was equivalent to 200 grams of marijuana. Id.


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      Amendment 750, which applies retroactively, equated 1 gram of crack

cocaine to 3,571 grams of marijuana. U.S.S.G. App. C, amend. 750 (2011);

U.S.S.G. § 2D1.1, comment. (n.8(D)).          Amendment 750 did not amend the

marijuana equivalency for powder cocaine, and it remains that 1 gram of powder

cocaine is equivalent to 200 grams of marijuana. U.S.S.G. § 2D1.1, comment.

(n.8(D)). A defendant’s base offense level is 26 if he was held accountable for at

least 100 kilograms, but less than 400 kilograms, of marijuana.          U.S.S.G. §

2D1.1(c)(7) (2012).

      “The rule of lenity requires ambiguous criminal laws to be interpreted in

favor of the defendants subjected to them.” United States v. Santos, 553 U.S. 507,

514 (2008). “The simple existence of some statutory ambiguity, however, is not

sufficient to warrant application of that rule, for most statutes are ambiguous to

some degree.” Muscarello v. United States, 524 U.S. 125, 138 (1998). In order for

the rule of lenity to apply, there must be a “grievous ambiguity or uncertainty in

the statute.” Id. at 138-39 (quotations omitted).

      Here, the district court did not err in concluding that it lacked authority

under § 3582(c)(2) to reduce Wright’s sentence because Wright did not show that

his amended guideline range pursuant to Amendment 750 was lower than his

current sentence. Although the sentencing court did not indicate how many levels

it departed downward under § 5K1.1, the record is devoid of support for Wright’s


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claim that the district court had imposed an 11-level § 5K1.1 departure, which he

admits is what would be necessary in order for him to be eligible for § 3582(c)(2)

relief. As the record shows, prior to sentencing, the government moved for a 4-

level substantial assistance departure, and the minute entry from sentencing states

that the court granted the government’s motion. At sentencing, Wright specifically

asked for a 6-level § 5K1.1 based on his extraordinary assistance, and never made

any mention of a greater § 5K1.1 departure than that. When the court sentenced

Wright, it first calculated his total sentence with a 4-level § 5K1.1 departure, which

it indicated would be 130 months. It then stated that it was going to give him a

lower sentence because Wright should not be given up on, and concluded that it

was going to give him the best sentence it could and still comply with § 3553(a).

Moreover, at the § 3582(c)(2) hearing, the court’s comments strongly indicated

that it had intended, at most, a 6-level departure. Wright’s amended offense level

following a 6-level departure would be 17, and, when combined with his criminal

history category of IV, would yield an amended guideline range of 37 to 46

months. U.S.S.G. Ch. 5, Pt. A (table). Accordingly, because Wright’s amended

guideline range, accounting for the greatest requested § 5K1.1 departure, is greater

than his original sentence of 24 months, he is ineligible for § 3582(c)(2) relief.

      Further, Wright has not shown any “grievous ambiguity or uncertainty” in §

1B1.10(b)(2)(B), and, thus, the rule of lenity does not apply in this case. Rather


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than being ambiguous, § 1B1.10(b)(2)(B) clearly limits the district court’s ability

to further reduce a defendant’s sentence below his amended guideline range to

situations where a substantial assistance departure previously was given. See

U.S.S.G. § 1B1.10(b)(2)(B). Wright’s unusual factual situation does not make that

guideline grievously ambiguous or uncertain, but instead implicates his ability to

show that he is eligible for the exception provided for in § 1B1.10(b)(2)(B).

      Nor are we persuaded by Wright’s claim that § 1B1.10, as amended by

Amendment 759, violates the Ex Post Facto Clause, exceeds the Sentencing

Commission’s authority, and violates the separation of powers doctrine. As he

acknowledges, our precedent in Colon squarely forecloses those arguments, and

we are bound by the opinion of a prior panel that has not been overturned by the

Supreme Court or our Court sitting en banc. See Colon, 707 F.3d at 1258-60;

Lawson, 686 F.3d at 1319.

      Accordingly, we affirm the district court’s denial of Wright’s § 3582(c)(2)

motion. In addition, this case is not appropriate for summary affirmance and

further briefing is unnecessary, so we deny the government’s motion for summary

affirmance.

      AFFIRMED.




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