             Case: 16-17686    Date Filed: 04/11/2018   Page: 1 of 4


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 16-17686
                            Non-Argument Calendar
                          ________________________

                 D.C. Docket No. 8:10-cr-00338-VMC-TBM-3

UNITED STATES OF AMERICA,
                                                                 Plaintiff-Appellee,

                                     versus

OMERO PENALOZA,

                                                            Defendant-Appellant.

                          ________________________

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

                                (April 11, 2018)

Before WILLIAM PRYOR, MARTIN and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Omero Penaloza appeals the denial of his motion to reduce his sentence.

Penaloza sought a reduction based on Amendment 782 to the Sentencing

Guidelines. 18 U.S.C. § 3582(c)(2). We affirm.
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      In 2010, Penaloza pleaded guilty to conspiring to distribute 50 grams or

more of methamphetamine. 21 U.S.C. §§ 841(a)(1), 846. Penaloza had an adjusted

base offense level of 30. See United States Sentencing Guidelines Manual

§§ 2D1.1(c)(5), 2D1.1(a)(5) (Nov. 2010). After Penaloza received reductions of

two levels for his minor role, id. § 3B1.2(b), and three levels for his acceptance of

responsibility, id. § 3E1.1(a)–(b), he had a total offense level of 25 and an advisory

sentencing range of 100 to 125 months. But Penaloza faced a mandatory statutory

minimum sentence of 240 months based on his prior conviction for a felony drug

offense, see 21 U.S.C. § 841(b)(1)(A); U.S.S.G. § 5G1.1(b), so the district court

imposed that mandatory sentence, see id. § 5G1.1(c)(2). After the government later

moved to reduce Penaloza’s sentence for his substantial assistance, the district

court reduced his sentence to 140 months of imprisonment. See Fed. R. Crim. P.

35(b); 18 U.S.C. § 3553(e).

      In 2015, Penaloza moved for another reduction of his sentence. See id.

§ 3582(c)(2). He argued that Amendment 782 lowered his base offense level from

28 to 26, which when combined with the other reductions that he had received,

provided a “total offense level . . . [of] 17” and a sentencing range of 84 to 105

months. The probation office opposed Penaloza’s motion on the ground that his

total offense level remained unchanged because the Amendment operated only to




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reduce his base offense level from 32 to 30. The district court summarily denied

Penaloza’s motion to reduce.

      The district court lacked authority to reduce Penaloza’s sentence because

Amendment 782 did not alter his sentencing range. The Amendment changed the

drug quantity table in section 2D1.1(c) and lowered Penaloza’s base offense level

from 32 to 30. See U.S.S.G. App. C, Amend. 782 (2014). But the Amendment did

not modify section 2D1.1(a), so the district court could not award Penaloza the

two-level reduction for his mitigating role because his base offense level was less

than 32. See id. § 2D1.1(a)(5)(B) (providing a two-level reduction if “[t]he offense

level specified in the Drug Quantity Table . . . is (i) level 32”). Penaloza’s total

offense level of 25 and sentencing range remained unchanged. Because

Amendment 782 did “not have the effect of lowering [Penzloza’s] applicable

guidelines range,” a reduction of his sentence was “not authorized under 18 U.S.C.

§ 3582(c)(2).” Id. § 1B1.10(a)(2)(B).

      Penaloza argues, for the first time on appeal, that he was entitled to a

reduction of his sentence under Amendment 780, but that Amendment is not

mentioned in section 1B1.10(d), id. § 1B1.10(a)(1). In the absence of an

“amendment[] listed in subsection (d) [that was] applicable to” Penaloza, “[a]

reduction in [his] term of imprisonment [would] not [have been] consistent with




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[section 1B1.10] and therefore [would] not [have been] authorized under 18 U.S.C.

§ 3582(c)(2).” See id. § 1B1.10(a)(2)(A).

      We AFFIRM the denial of Penaloza’s motion to reduce his sentence.




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