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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-12686
Non-Argument Calendar
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D.C. Docket No. 1:08-cr-20896-MGC-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNY JASMIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 5, 2014)
Before PRYOR, MARTIN and BLACK, Circuit Judges.
PER CURIAM:
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Johnny Jasmin appeals the district court’s denial of his motion for a sentence
reduction pursuant to 18 U.S.C. § 3582(c)(2). The district court denied the motion
based on its conclusion that § 3582(c)(2) does not authorize the court to reduce
Jasmin’s sentence. Upon review, 1 we affirm.
Jasmin’s offenses and criminal history subjected his guideline range to
computation pursuant to either the drug-quantity table at § 2D1.1(c) or the career-
offender guidelines at § 4B1.1(a). Because the career-offender guideline produced
a higher offense level than the drug-quantity table, the career offender guideline
applied. See U.S.S.G. § 4B1.1(b). Consequently, the district court sentenced
Jasmin based on § 4B1.1, not § 2D1.1. See United States v. Moore, 541 F.3d 1323,
1327 (11th Cir. 2008).
Section 3582(c)(2) authorizes a court to reduce the term of imprisonment of
a defendant who has been sentenced based on a sentencing range that the United
States Sentencing Commission has subsequently lowered pursuant to 28 U.S.C.
§ 994(o). 18 U.S.C. § 3582(c)(2). We have previously stated that the scope of
§ 3582(c)(2) is “quite narrow,” as it only authorizes a sentence reduction if “[t]he
Sentencing Commission [has] amended the Sentencing Guidelines, pursuant to 28
U.S.C. § 994(o), that guidelines amendment [has] lowered the defendant’s
1
We review a district court’s conclusions regarding the scope of its authority under 18
U.S.C. § 3582(c)(2) de novo. United States v. Lawson, 686 F.3d 1317, 1319 (11th Cir. 2012).
2
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sentencing range, and it [is also] one that is listed in U.S.S.G. § 1B1.10(c).”
United States v. Berry, 701 F.3d 374, 376 (11th Cir. 2012). Section 3582(c)(2)
does not authorize a reduction in the instant case because no amendment to the
guidelines has had the effect of reducing Jasimin’s sentencing range. It is true that
Amendment 750 has lowered the guideline ranges associated with § 2D1.1(c), but
the district court sentenced Jasmin as a career offender, and his guidelines range
was therefore determined under § 4B1.1, not the drug quantities set forth at
§ 2D1.1. See Moore, 541 F.3d at 1327.
Moreover, it true that the Fair Sentencing Act lowered the statutory
minimum penalties associated with Jasmin’s offenses under 21 U.S.C. § 841(b),
see Fair Sentencing Act of 2010, Pub. L. No. 111-220 § 2(a), 124 Stat. 2372
(2010), and that this modification had the effect of lowering Jasmin’s guideline
range. 2 However, “the FSA is not a guidelines amendment by the Sentencing
Commission, but rather a statutory change by Congress, and thus it does not serve
as a basis for a § 3582(c)(2) sentence reduction.” United States v. Berry, 701 F.3d
374, 377 (11th Cir. 2012). For these reasons, Jasmin cannot show that he is
eligible for a sentence reduction under § 3582(c)(2). See Berry 701 F.3d at 376.
2
This is so because the offense level for career offenders under § 4B1.1(b) of the
guidelines depends on the statutory maximum term of imprisonment for the underlying offense.
U.S.S.G. § 4B1.1. Because the FSA lowered the statutory maximum for Jasmin’s offense from
life imprisonment to 40 years, see 21 U.S.C. § 841(b)(1)(B)(iii), his preliminary offense level
under § 4B1.1(b) would be reduced from 37 to 34.
3
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Jasmin argues that although the Sentencing Guidelines directed that he be
sentenced as a career offender under § 4B1.1, the district court’s decision to
sentence him below his career-offender guideline range resulted in what was
“functionally” a sentence under § 2D1.1. In support of this argument, Jasmin cites
opinions from several circuits concluding that, even if a defendant’s applicable
guideline range was determined pursuant the career-offender provisions, when a
court nevertheless sentences a defendant based on the drug guidelines, the
defendant is eligible for a reduction under § 3582(c)(2) based on an amendment to
the drug guidelines. See, e.g., United States v. Cardosa, 606 F.3d 16, 21 (1st Cir.
2010) (“[W]e conclude that where the defendant’s existing sentence was ultimately
determined by the old crack cocaine guidelines rather than by the career offender
guideline, resentencing is within the discretion of the district court.”); United
States v. Munn, 595 F.3d 183, 195 (4th Cir. 2010) (“[A] . . . sentence reduction is
not barred where the sentencing court, following an Overrepresentation Departure,
based the defendant’s ultimate sentence on the Crack Guidelines.”). In United
States v. Moore, 541 F.3d 1323, 1329-30 (11th Cir. 2008), we discussed two then-
recent district court decisions 3 reaching similar conclusions before determining
3
The decisions we discussed are United States v. Ragland, 568 F. Supp. 2d 19 (D.D.C.
2008) and United States v. Poindexter, 550 F. Supp. 2d 578 (E.D. Pa. 2008).
4
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that those decisions were distinguishable from the case then before us. We reach
the same determination in the instant case.
The district court in the instant case departed downward from the career
offender guidelines, but the record does not indicate that it based Jasmin’s ultimate
sentence on the drug guidelines, nor did the court grant an “overrepresentation
departure.” To the contrary, although the district court discussed the possibility
that the guidelines overrepresented Jasmin’s criminal history the court also
discussed other sentencing factors, such as the need to avoid unwarranted
sentencing disparities between Jasmin and his co-defendants, and it ultimately
based Jasmin’s sentence on the 18 U.S.C. § 3553(a) sentencing factors. The
district court did not depart downward to a sentence that fell within the guideline
range under the drug-quantity table that would have applied in the absence of the
career-offender provisions. Instead, the district court rendered a sentence that was
significantly below not only the career-offender guidelines but the drug-quantity
guidelines as well.4 Cf. Munn, 595 F.3d at 197 (Duncan, J., dissenting) (noting
4
This fact provides an additional basis on which the district court was required to deny
Jasmin’s motion. The Sentencing Guidelines expressly state that a “court shall not reduce the
defendant’s term of imprisonment under [§ 3582(c)(2)] and this policy statement to a term that is
less than the minimum of the amended guideline range.” U.S.S.G. § 1B1.10(b)(2)(B). The only
exception to this rule is if the initial sentence was below the guideline range “pursuant to a
government motion to reflect the defendant’s substantial assistance,” which is not true in this
case. Id. § 1B1.10(b)(2)(B).
In light of these provisions and the fact that Jasmin’s current sentence is already below
“the minimum of the amended guideline range,” the district court is not authorized to further
5
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that the resulting sentence after the district court’s downward departure “fit
squarely within what otherwise would have been [the defendant’s] applicable
guideline range”). The cases Jasmin cites are therefore distinguishable, and his
argument fails.
AFFIRMED.
reduce Jasmin’s sentence. See also 18 U.S.C. § 3582(c)(2) (authorizing a sentence reduction
only “if such a reduction is consistent with the applicable policy statements issued by the
Sentencing Commission.”).
6