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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-15248
Non-Argument Calendar
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D.C. Docket No. 1:07-cr-00034-WTM-WLB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES LESTER KIMBRELL, III,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(November 17, 2016)
Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
James Kimbrell, III, proceeding pro se, appeals from the district court’s
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denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentences based on
Amendment 782 to the Sentencing Guidelines. Kimbrell was sentenced to 60
months’ imprisonment for distributing pseudoephedrine and 108 months’
imprisonment for possession of a firearm and ammunition by a convicted felon.
Kimbrell argues that Amendment 782 lowers his sentence for distributing
pseudoephedrine.
We review de novo the district court’s legal conclusions about the scope of
its authority under § 3582(c)(2). United States v. Lawson, 686 F.3d 1317, 1319
(11th Cir. 2012). The defendant, as the movant, bears the burden of establishing
that a retroactive amendment actually lowers his guideline range. United States v.
Hamilton, 715 F.3d 328, 337 (11th Cir. 2013). However, § 3582(c)(2) does not
grant the court jurisdiction to consider extraneous resentencing issues, including
collateral attacks on a sentence. United States v. Bravo, 203 F.3d 778, 782 (11th
Cir. 2000).
Ordinarily, a district court may not modify a defendant’s term of
imprisonment once it has been imposed. 18 U.S.C. § 3582(c). However, a district
court may reduce a defendant’s sentence if the term of imprisonment was “based
on a sentencing range that has subsequently been lowered by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). For a defendant to be eligible for such a
reduction based on a subsequent amendment to the Sentencing Guidelines, the
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relevant amendment must be listed in U.S.S.G. § 1B1.10(d). U.S.S.G.
§ 1B1.10(a)(1). Because Amendment 782 is one of the listed amendments that
applies retroactively, it may serve as the basis for a § 3582(c)(2) motion to reduce
sentence. U.S.S.G. §§ 1B1.10(a)(1), (d). Amendment 782 revises the drug
quantity tables in U.S.S.G. § 2D1.1, resulting in a two-level reduction to the base
offense level applicable to most drug offenses. See U.S.S.G. App. C, Amend. 782
(2014). For defendants charged with 36.5 grams of pseudoephedrine, the base
offense level was reduced from 26 to 24. Compare U.S.S.G. § 2D1.11(d)(8)
(2007) to U.S.S.G. § 2D1.11(d)(8) (2015). However, under the Guidelines’
grouping rules, the higher adjusted offense level determines the applicable
guideline range. U.S.S.G. § 3D1.1.
But the grounds upon which a district court may reduce a defendant’s
sentence pursuant to § 3582(c)(2) are narrow. United States v. Berry, 701 F.3d
374, 376 (11th Cir. 2012). A district court may not reduce a defendant’s term of
imprisonment unless a reduction is consistent with applicable policy statements
issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). A reduction is
inconsistent with the Guidelines’ policy statement if the amendment does not have
the effect of lowering the defendant’s “applicable guideline range.” U.S.S.G.
§ 1B1.10(a)(2)(B). Thus, “[w]here a retroactively applicable guideline amendment
reduces a defendant’s base offense level, but does not alter the sentencing range
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upon which his or her sentence was based, § 3582(c)(2) does not authorize a
reduction in sentence.” Hamilton, 715 F.3d at 337.
The district court did not err when it denied Kimbrell’s § 3582(c)(2) motion
because Amendment 782 does not lower his guideline range. Although
retroactively applying Amendment 782 decreases Kimbrell’s base offense level for
Count 1, his adjusted offense level for Count 2 remains higher, and under the
Guidelines’ grouping rules, the higher adjusted offense level determines the
applicable guideline range. U.S.S.G. § 3D1.1. Accordingly, Amendment 782 does
not alter the guideline range underlying Kimbrell’s sentence and we affirm.
AFFIRMED.
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