             Case: 15-14838      Date Filed: 02/15/2017   Page: 1 of 9


                                                             [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 15-14838
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 6:07-cr-00201-GAP-KRS-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                       versus

ALEJANDRO CANO,
a.k.a. Alejandro Cano-Sanchez,

                                                              Defendant-Appellant.


                         ________________________

                               No. 15-14841
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 6:10-cr-00003-MSS-DAB-2



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,
             Case: 15-14838   Date Filed: 02/15/2017   Page: 2 of 9


                                   versus

EDENILSON A. HERNANDEZ,
a.k.a. Edenilson A. Hernandez-Rendero,

                                                           Defendant-Appellant.


                         ________________________

                               No. 15-14925
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 8:07-cr-00074-JDW-MAP-3



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                    versus

SEAN T. BAXTER,

                                                           Defendant-Appellant.


                         ________________________

                               No. 15-15382
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 2:04-cr-00016-JES-DNF-1



UNITED STATES OF AMERICA,


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                                                            Plaintiff-Appellee,

                                    versus

ERNESTO GARCIA,
a.k.a. Limon,

                                                         Defendant-Appellant.


                      ________________________

                            No. 15-15407
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:11-cr-00119-RAL-TBM-1



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                    versus

JERSAIN PENALOZA-BENITEZ,

                                                         Defendant-Appellant.

                      ________________________

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

                            (February 15, 2017)

Before TJOFLAT, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      In this consolidated appeal, Defendants Alejandro Cano, Edenilson

Hernandez, Sean Baxter, Ernesto Garcia, and Jersain Penaloza-Benitez appeal

separate district court decisions denying and partially denying their motions for a

sentence reduction under 18 U.S.C. § 3582(c)(2). Defendants’ motions relied on

Amendment 782 of the Sentencing Guidelines, which reduced the base offense

level for most drug offenses. Defendants also requested a downward variance

comparable to the one they received at their original sentencings. The district

courts denied and partially denied Defendants’ motions, concluding that a district

court may not reduce a defendant’s sentence below the low end of the amended

guideline range pursuant to U.S.S.G. § 1B1.10(b)(2)(A). After careful review, we

affirm.

I.    BACKGROUND

      Defendants were separately convicted of various unrelated drug offenses.

The probation officer prepared a presentence investigation report in each case,

utilizing U.S.S.G. § 2D1.1 to calculate each defendant’s base offense level. In four

of the cases, the district courts sentenced the defendants below their applicable

guideline ranges as a result of a downward variance. These variances were not

related to substantial assistance. In one of the cases, the district court departed




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from a criminal history category of III to II, and then sentenced the defendant

within the amended guideline range. 1

       Following issuance of Amendment 782—made retroactive by Amendment

788—each defendant filed a motion requesting a sentence reduction under

§ 3582(c)(2). In particular, each defendant requested a sentence below their

amended guideline range under Amendment 782. Recognizing that binding

precedent precluded the district courts from varying below the minimum of the

amended guideline range, Defendants still requested a variance comparable to the

one imposed at their original sentencings.

       In the cases of Cano and Hernandez, the district courts denied their

§ 3582(c)(2) motions, concluding that a sentence reduction was not permitted

under § 1B1.10(b)(2)(A) because their original sentences were either equal to or

below the minimum of their amended guideline ranges. As to Baxter, Garcia, and

Penaloza-Benitez, the district courts partially denied their motions. The district


1
  To illustrate, Cano’s guideline range was 140 to 175 months’ imprisonment, but the district
court varied downward to 130 months’ imprisonment. As to Hernandez, the district court
calculated a guideline range of 135 to 168 months’ imprisonment, but imposed a 97-month
sentence based on the 18 U.S.C. § 3553(a) factors. As to Baxter, the district court imposed a
180-month sentence, which reflected a downward variance from the guideline range of 210 to
262 months’ imprisonment. Likewise, Penaloza-Benitez also received a downward variance to
120 months’ imprisonment from a guideline range of 135 to 168 months’ imprisonment. Unlike
the other defendants, the district court sentenced Garcia within the applicable guideline range.
To be clear, the district court departed from a criminal history category of III to a category II
after determining that Garcia’s criminal history was overrepresented, but then imposed a
sentence of 328 months—which was within the amended guideline range of 324 to 405 months’
imprisonment.


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courts reduced their sentences to the minimum of the amended guideline range, as

this was less than their original term of imprisonment, but did not grant these

defendants’ requests for a sentence below the low end of the amended guideline

ranges.

      Following Defendants’ timely appeals of the denials of their § 3582(c)(2)

motions, we granted their motions to consolidate their appeals.

II.   DISCUSSION

      A.     General Principles

      We review de novo a district court’s legal conclusions on the scope of its

authority under § 3582(c)(2). United States v. Jones, 548 F.3d 1366, 1368 (11th

Cir. 2008). Under § 3582(c)(2), a district court may modify a term of

imprisonment when the original sentencing range has subsequently been lowered

as a result of an amendment to the Guidelines by the Sentencing Commission. 18

U.S.C. § 3582(c)(2).

      To be eligible for a sentence reduction, a defendant must identify an

amendment to the Sentencing Guidelines that is listed in U.S.S.G. § 1B1.10(d).

U.S.S.G. § 1B1.10(a)(1). A district court may not use a guideline amendment to

reduce a defendant’s sentence unless the amendment actually lowers the

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

comment. (n.1(A)).


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       B.      Analysis

       Defendants’ appeal focuses on the district courts’ application of

§ 1B1.10(b)(2), as amended by Amendment 759, to deny their requests for a

sentence below the minimum of the amended guideline range.2

       Prior to 2011, § 1B1.10 permitted the district court to reduce a defendant’s

sentence below the amended guideline range under certain circumstances.

U.S.S.G. § 1B1.10(b)(2)(B) (2010). However, the provision provided that if the

defendant had received a sentence below the guidelines as a result of a variance, a

further reduction would not be appropriate. Id. In 2011, the Sentencing

Commission issued Amendment 759, which, among other things, amended

§ 1B1.10 to prohibit courts from resentencing a defendant to a term below the

amended guideline range, except in cases of substantial assistance. U.S.S.G. App.

C, amend. 759; U.S.S.G. § 1B1.10(b)(2)(A)-(B). The Guidelines’ commentary

explains that the court may not impose a sentence below the amended guideline

range even if the defendant received a departure or variance at his original

sentencing. U.S.S.G. § 1B1.10, comment. (n.3).

       Defendants argue that § 1B1.10(b)(2), as amended by Amendment 759,

violates the Ex Post Facto Clause, exceeds the Sentencing Commission’s authority

under 28 U.S.C. § 994(u), and violates the separation of powers doctrine. The

2
  As noted earlier, Garcia did not receive a variance; he received a downward departure as to his
criminal history category and then received a sentence within the guideline range.
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problem for Defendants is that these arguments are foreclosed by our decision in

United States v. Colon, 707 F.3d 1255 (11th Cir. 2013). In Colon, we held that the

application of § 1B1.10(b)(2), post-Amendment 759, did not violate the Ex Post

Facto Clause or the separation of powers doctrine, nor did the Sentencing

Commission exceed its authority under § 994(u) by amending § 1B1.10(b)(2). See

Colon, 707 F.3d at 1258–62. Under the prior precedent rule, we are bound by our

decision in Colon “unless and until it is overruled by this court en banc or by the

Supreme Court.” United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir.

2008) (quoting United States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003)).

      Defendants further assert that our decision in Colon has been undermined by

the Supreme Court’s subsequent decision in Peugh v. United States, 133 S. Ct.

2072 (2013). In Peugh, the Supreme Court held that a defendant’s rights under the

Ex Post Facto Clause are violated when he is sentenced under a more recent

version of the guidelines that provide for a harsher sentence than the guidelines

applicable at the time he committed the offense. 133 S. Ct. at 2079, 2088.

However, Peugh does not overrule or conflict with our decision in Colon, as Colon

addressed whether the application of a Guidelines’ amendment that limited the

district court’s discretion to reduce a defendant’s sentence under § 3582(c)(2)

violated the Ex Post Facto Clause. See Colon, 707 F.3d at 1258–62. Therefore,

Colon remains binding precedent. See Vega-Castillo, 540 F.3d at 1236.


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      We are also not persuaded by Defendants’ argument that the post-

Amendment version of § 1B1.10(b)(2) conflicts with Congress’s statutory directive

to avoid unwarranted sentencing disparities. In fact, the Sentencing Commission

explained that Amendment 759, which eliminated the distinction between

departures and variances for purposes of the exception to § 1B1.10(b)(2), furthered

the “need to avoid unwarranted sentencing disparities and avoids [the need for]

litigation in individual cases.” U.S.S.G. App. C, amend. 759 (Reasons for

Amendment).

      In short, the district court properly applied § 1B1.10(b)(2) in concluding that

Defendants were not entitled to a sentence reduction below the minimum of their

amended guideline ranges. Accordingly, the district courts’ denials and partial

denials of Defendants’ § 3582(c)(2) motions are AFFIRMED.




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