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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13705
Non-Argument Calendar
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D.C. Docket No. 1:08-cr-21146-DLG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DIONISIO VALENCIA-MOSQUERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 7, 2016)
Before HULL, MARCUS, and ANDERSON, Circuit Judges.
PER CURIAM:
Dionisio Valencia-Mosquera appeals the district court’s order granting his
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18 U.S.C. § 3582(c)(2) motion to reduce sentence, but only reducing his sentence
to 120 months’ imprisonment when he requested a reduction to 102 months.
In February 2009, Valencia-Mosquera pled guilty to one count of conspiracy
to possess with intent to distribute five kilograms or more of cocaine while on
board a vessel subject to the jurisdiction of the United States, in violation of 21
U.S.C. § 960(b)(1)(B), 46 U.S.C. §§ 70503(a), 70506(a)-(b) (“Count One”); and
one count of possession with intent to distribute five kilograms or more of cocaine
while on board a vessel subject to the jurisdiction of the United States, in violation
of 18 U.S.C. § 2, 21 U.S.C. § 960(b)(1)(B), 46 U.S.C. §§ 70503(a), 70506(a)
(“Count Two”).
Applying the 2008 Guideline Manual, the district court set the base offense
level at 38, pursuant to U.S.S.G. § 2D1.1(a)(3), because the offense involved
possession with intent to distribute 150 kilograms or more of cocaine. After
various enhancements and reductions, the total offense level was 39. Based on a
total offense level of 39 and a criminal history category of I, Valencia-Mosquera’s
advisory guideline range was 262 to 327 months. The statutory mandatory
minimum term of imprisonment as to Counts One and Two was 120 months.
At sentencing, the government moved to reduce Valencia-Mosquera’s
sentence pursuant to U.S.S.G. § 5K1.1 based on his substantial assistance to
authorities, and requested that the district court impose a sentence that was 15%
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below the low end of the advisory guideline range. The court granted the motion
and applied a greater reduction than was requested, sentencing Valencia-Mosquera
to 126 months’ imprisonment as to Counts One and Two, the terms to run
concurrently.
In 2015, Valencia-Mosquera filed a motion to reduce his sentence, asserting
that the district court had authority to reduce his sentence under 18 U.S.C.
§ 3582(c)(2) and U.S.S.G. § 1B1.10 based on Amendment 782 to the Sentencing
Guidelines, and requesting that the court reduce his sentence to 102 months’
imprisonment. The court granted his motion, but only reduced his sentence to 120
months.
On appeal, Valencia-Mosquera argues that the district court did not
adequately explain its reasons for the amount of the reduction it granted.
We review de novo a district court’s legal conclusions as to the scope of its
authority under § 3582(c)(2). United States v. Jones, 548 F.3d 1366, 1368 (11th
Cir. 2008). Where a defendant is eligible for a sentence reduction under
§ 3582(c)(2), we review a district court’s decision to deny a sentence reduction for
an abuse of discretion. Id. at 1368 n.1.
A district court may modify a sentence if the defendant “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). Amendment
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782 reduced by 2 levels the base offense levels that apply to most drug offenses,
including offenses involving cocaine. U.S.S.G. App. C, Amend. 782 (2014).
A district court must follow a two-step process in ruling on a § 3582(c)(2)
motion. United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). First, the
court must recalculate the defendant’s sentence by substituting the amended
guideline range for the originally applied guideline range. Id. At this step, all
other guideline application decisions made during the original sentencing remain
intact. Id. Second, the court must decide whether, in its discretion and in light of
the 18 U.S.C. § 3553(a) sentencing factors, to reduce the defendant’s sentence and,
if so, to what extent. Id. at 781.
Under the Sentencing Guidelines, where a statutorily required minimum
sentence is greater than the maximum of the applicable guideline range, the
statutorily required minimum sentence becomes the guideline sentence. U.S.S.G.
§ 5G1.1(b). In any other case, the sentence may be imposed at any point within the
applicable guideline range, provided that the sentence is not less than the
statutorily required minimum sentence. Id. § 5G1.1(c). A defendant convicted of
possession, or conspiracy to possess, with intent to distribute five kilograms or
more of cocaine while on board a vessel subject to the jurisdiction of the United
States, in violation of 46 U.S.C. §§ 70503(a), 70506(b), is subject to a 10-year or
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120-month mandatory minimum sentence. 21 U.S.C. § 960(b)(1)(B); 46 U.S.C.
§ 70506(a).
A district court may apply a variance and impose a sentence outside of the
advisory guideline range if it finds that a variance is justified under the sentencing
factors set forth in 18 U.S.C. § 3553(a). United States v. Kapordelis, 569 F.3d
1291, 1316 (11th Cir. 2009). At a defendant’s original sentencing, a court may
impose a sentence below the statutory mandatory minimum, on the government’s
motion, in order to reflect his substantial assistance to authorities. 18 U.S.C.
§ 3553(e). Guided departures, which are departures specifically provided for in the
Sentencing Guidelines, also permit a court to impose a sentence outside of the
advisory guideline range. United States v. Gibson, 434 F.3d 1234, 1252 (11th Cir.
2006). U.S.S.G. § 5K1.1 provides for a departure from the guideline range based
on a government motion stating that the defendant provided substantial assistance
to authorities. In the absence of a request by the government for the district court
to impose a sentence below a statutory mandatory minimum, the government’s
filing of a substantial assistance motion pursuant to § 5K1.1 does not authorize the
court to impose a sentence below the statutory minimum. Melendez v. United
States, 518 U.S. 120, 124-30, 116 S. Ct. 2057, 2060-63, 135 L. Ed. 2d 427 (1996).
Generally, a district court may not reduce a defendant’s sentence under
§ 3582(c)(2) below the amended guideline range. U.S.S.G. § 1B1.10(b)(2)(A);
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United States v. Liberse, 688 F.3d 1198, 1201 (11th Cir. 2012). However, where a
defendant originally received a below-guidelines sentence pursuant to a
government motion to reflect his substantial assistance to authorities, a reduction
that is “comparably less” than the amended guideline range “may be appropriate.”
U.S.S.G. § 1B1.10(b)(2)(B). U.S.S.G. § 1B1.10(c) provides that, where the
sentencing court originally had the authority to impose a sentence below a
statutory mandatory minimum pursuant to a government motion to reflect the
defendant’s substantial assistance, the amended guideline range is determined
“without regard” to U.S.S.G. § 5G1.1’s requirement that the guideline range not
fall below the mandatory minimum. See also United States v. Williams, 549 F.3d
1337, 1339-42 (11th Cir. 2008) (holding that the district court’s grant of the
government’s § 5K1.1 substantial assistance motion did not effectively waive the
statutory mandatory minimum for purposes of resentencing, where the defendant’s
guideline range was displaced by the statutory mandatory minimum that was
higher than the top end of the otherwise applicable guideline range).
Here, the district court was not authorized to reduce Valencia-Mosquera’s
sentence any further in light of the applicable 120-month statutory mandatory
minimum. See 21 U.S.C. § 960(b)(1)(B); 46 U.S.C. § 70506(a). At the original
sentencing proceeding, the district court did not have the authority to impose a
sentence below the statutory minimum because the government only moved to
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reduce Valencia-Mosquera’s sentence pursuant to U.S.S.G. § 5K1.1. See
Melendez, 518 U.S. at 124-30, 116 S. Ct. at 2060-63. At the proceeding, the
government stated that it was only authorized to request a sentence reduction
pursuant to § 5K1.1, requested a 15% reduction from the guideline range, and did
not request that the court sentence Valencia-Mosquera below the statutory
minimum in light of his substantial assistance. Therefore, at resentencing
Valencia-Mosquera remained subject to the 120-month statutory minimum and the
bottom of the amended guideline range was 120 months, and the court could not
reduce his sentence to a term below 120 months. See U.S.S.G. § 1B1.10(b)(2)(A),
(c); see also id. § 5G1.1(b)-(c). Because the district court was not authorized to
grant Valencia-Mosquera any greater sentence reduction, we need not address
whether it adequately stated the reasons for its decision.
AFFIRMED.
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