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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-10608
Non-Argument Calendar
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D.C. Docket No. 2:97-cr-00026-DHB-RSB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BILLY GUYTON, SR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(January 14, 2016)
Before MARCUS, WILSON and ROSENBAUM, Circuit Judges.
PER CURIAM:
Billy Guyton, Sr., proceeding pro se, appeals the district court’s denial of his
18 U.S.C. § 3582(c)(2) motion to reduce his 384-month sentence pursuant to
Amendment 782 of the Sentencing Guidelines and the district court’s denial of his
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motion to appoint counsel, after a jury found him guilty of: (1) conspiracy to
distribute crack, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and 846;
(2) distribution of crack, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1);
and (3) traveling in interstate commerce to promote unlawful activity, in violation
of 18 U.S.C. §§ 2 and 1952(a)(3). Prior to filing this § 3582 motion based on
Amendment 782, Guyton filed a previous § 3582 motion in 2011 based on
Amendment 750. In denying that motion, the district court determined, based on
the presentence investigation report (“PSI”), that Guyton was responsible for
between 120 and 288 kilograms of crack cocaine, and, thus, was ineligible for a
sentence reduction since Amendment 750 did not change his guideline range. We
vacated and remanded on appeal, concluding that Guyton had disputed the PSI fact
that he was responsible for 120 to 288 kilograms of crack cocaine, and the district
court therefore erred by relying on it. United States v. Guyton, 550 F. App’x 796,
799-800 (11th Cir. 2013) (unpublished). On remand, the district court found that
the trial evidence supported a finding of 6.0376 kilograms of crack cocaine and 4
kilograms of powder cocaine. However, the district court held that Guyton was not
entitled to a further reduction of his total sentence, because, even with the lesser
drug quantity, Amendment 750 did not lower his guideline range. We affirmed.
United States v. Guyton, 596 F. App’x 873 (11th Cir. 2015) (unpublished).
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Guyton then filed the instant § 3582 motion, which the district court denied
on the ground that that his presentence investigation report (“PSI”) reflected that
he had distributed 120 to 288 kilograms of crack cocaine. On appeal, Guyton
argues that: (1) he qualifies under Amendment 782 for a reduction or modification
of his total sentence; and (2) he has a right to be represented by an attorney. The
government concedes that the district court erred in denying Guyton’s § 3582
motion. After careful review, we affirm in part, and vacate and remand in part.
We review de novo a district court’s legal conclusions about the Sentencing
Guidelines and the scope of its authority under § 3582(c)(2). United States v.
Liberse, 688 F.3d 1198, 1200 n.1 (11th Cir. 2012). We review factual findings
underlying the district court’s legal conclusions only for clear error. Id. We
review the existence of right to counsel in a § 3582(c)(2) proceeding de novo, and
the district court’s decision not to appoint counsel for abuse of discretion. United
States v. Webb, 565 F.3d 789, 793 (11th Cir. 2009). A concession by the
government can be considered, especially if supported by the law and facts. See
Lobosco v. Thomas, 928 F.2d 1054, 1060 (11th Cir. 1991).
Under 18 U.S.C. § 3582(c)(2), a district court may modify a term of
imprisonment that was based on a sentencing range that has subsequently been
lowered by the Sentencing Commission. Amendment 782 revised the guidelines
applicable to drug-trafficking offenses by changing how the base offense levels in
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the Drug Quantity Table in § 2D1.1(c) incorporate the statutory mandatory
minimum penalties for those offenses. U.S.S.G. App. C, Amend. 782. In a prior
version of § 2D1.1(c), a base offense level of 36 applied if the defendant’s offense
involved at least 2.8 kilograms but less than 8.4 kilograms of cocaine base.
U.S.S.G. § 2D.1.1(c)(2) (2013). In the amended version of § 2D1.1(c), a base
offense level of 34 applies if the defendant’s offense level involved at least 2.8
kilograms but less than 8.4 kilograms of cocaine base. U.S.S.G. § 2D1.1(c)(3).
In this appeal, the district court erred in denying Guyton’s § 3582(c)(2)
motion based on Amendment 782, as the government correctly notes. As the
record shows, the district court relied on the finding in the PSI that Guyton
distributed 120 to 288 kilograms of crack cocaine. However, in Guyton’s appeal
from the denial of his 2011 § 3582 motion, we rejected the district court’s reliance
on the disputed PSI facts regarding the quantity of crack cocaine for which Guyton
was responsible. The district court subsequently made a factual finding that
Guyton was responsible for 6.0376 kilograms of crack cocaine and 4 kilograms of
powder cocaine, and we affirmed the denial of Guyton’s 2011 § 3582 motion
based on that quantity finding. Because the district court’s later finding that
Guyton distributed 6.0376 kilograms of crack cocaine differed from the disputed
PSI fact that he was responsible for 120 to 288 kilograms of crack cocaine, the
district court’s reliance on the disputed PSI fact was clear error.
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Furthermore, Guyton would be at least eligible for a reduction based on the
district court’s factual finding that 6.0376 kilograms of crack cocaine was involved
in Guyton’s offenses. While offenses involving at least 2.8 kilograms but less than
8.4 kilograms of crack cocaine would previously have resulted in a base offense
level of 36, currently, offenses involving that quantity of crack cocaine result in a
base offense level of 34. Compare U.S.S.G. § 2D1.1(c)(2) (2013) with U.S.S.G. §
2D1.1(c)(3). Because Guyton received a 3-level increase for being a manager or
leader of criminal activity and a 2-level increase for obstruction of justice, his total
offense level under the revised Guidelines would be 39. Based on a total offense
level of 39 and a criminal history category of III, Guyton’s revised guideline range
would be 324 to 405 months’ imprisonment. We therefore vacate the district
court’s denial of the § 3582 motion, and remand for resentencing. We express no
opinion on whether the district court, after considering appropriate factors, should
exercise its discretion to grant a reduction. See Dillon v. United States, 560 U.S.
817, 831 (2010) (Pursuant to U.S.S.G. § 1B1.10(b)(1), “a court proceeding under §
3582(c)(2) ‘shall substitute’ the amended Guidelines range for the initial range
‘and shall leave all other guideline application decisions unaffected.’”).
Despite the foregoing, the district court did not err in denying Guyton’s
request for appointment of counsel. In Webb, we held that “there is no statutory or
constitutional right to counsel for a § 3582(c)(2) motion or hearing.” 565 F.3d at
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795. As a result, “the decision to appoint an attorney is left to the discretion of the
district court.” Id. Moreover, nothing in the statutory language of § 3582(c)
requires a hearing. See generally 18 U.S.C. § 3582. Therefore, the district court
did not abuse its discretion in denying him counsel.
VACATED AND REMANDED IN PART, AFFIRMED IN PART.
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