[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12954 ELEVENTH CIRCUIT
JANUARY 4, 2010
Non-Argument Calendar
JOHN P. LEY
________________________
ACTING CLERK
D. C. Docket No. 03-00485-CR-T-17-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
JOHN GERONE THOMAS,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 4, 2010)
Before EDMONDSON, BIRCH and FAY, Circuit Judges.
PER CURIAM:
The government appeals the district court’s grant of John Gerone Thomas’s
18 U.S.C. § 3582(c)(2) motion to reduce sentence. The government argues that the
district court lacked discretion to depart below the 10-year mandatory minimum
sentence required by 21 U.S.C. § 841(b)(1)(A)(iii). For the reasons set forth
below, we vacate Thomas’s sentence and remand to the district court.
I.
Pursuant to a written plea agreement, Thomas pled guilty to possession with
intent to distribute 50 grams or more of crack cocaine. The presentence
investigation report (“PSI”) initially set Thomas’s base offense level at 38, under
U.S.S.G. § 2D1.1(c)(1), because Thomas’s offense involved 4 kilograms of crack
cocaine. After applying a 2-point enhancement under § 2D1.1(b)(1), (possession
of a weapon during the offense), and a 3-level reduction under §§ 3E1.1(a) and
(b), (acceptance of responsibility), Thomas’s total offense level was set at 37.
Thomas’s four criminal history points placed him in criminal history category III.
His offense level of 37 combined with criminal history category III to yield a
guideline imprisonment range of 262 to 327 months. Pursuant to 21 U.S.C.
§ 841(b)(1)(A), Thomas was subject to a mandatory minimum of 10 years’
imprisonment.
At sentencing, the court granted the government’s U.S.S.G. § 5K1.1 motion
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for a 4-level departure and then departed an additional 2 levels, reducing Thomas’s
offense level to 31 and his guideline imprisonment range to 135 to 168 months.
The court sentenced Thomas to 135 months’ imprisonment, to be followed by 5
years’ supervised release.
On January 29, 2009, the district court, sua sponte, appointed a public
defender to represent Thomas, ordered the probation office to complete a
supplemental report addressing whether Thomas was eligible for a sentence
reduction under § 3582(c)(2) and Amendment 706, and ordered Thomas and the
government to file responses to the probation officer’s supplemental report.
The government responded that Amendment 706 reduced Thomas’s original
offense level of 37 to 35 and his original guideline imprisonment of 262 to 327
months to 210 to 262 months. It asserted that, pursuant to § 1B1.10(b)(2)(B) and
§ 1B1.10, comment. (n.3), the court should recalculate Thomas’s total offense
level, then apply a departure comparable to the one Thomas originally received as
a result of the § 5K1.1 motion. The government noted that such a departure would
result in an amended guideline range of 108 to 135 months, but it noted that
Thomas was subject to a statutory mandatory minimum of 10 years’ (120 months)
imprisonment. The government stated that it would not oppose a reduction to 120
months’ imprisonment.
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The district court issued an order reducing Thomas’s sentence to 100
months’ imprisonment. It noted that Thomas’s amended total offense level was 35,
his criminal history category remained III, and his amended guideline
imprisonment range was 210-262 months. The court explained that “[t]he previous
term of imprisonment was less than the guideline range applicable to the defendant
at the time of sentencing as a result of a departure or Rule 35 reduction and the
reduced sentence is comparably less than the amended guideline range.”
II.
We review de novo issues of legal interpretation in the § 3582(c)(2) context.
United States v. Williams, 549 F.3d 1337, 1338-39 (11th Cir. 2008). A district
court may modify a term of imprisonment in the case of a defendant who was
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).
III.
The district court correctly determined that Amendment 706 lowered
Thomas’s applicable guideline range. Because Thomas’s guideline range was
based on § 2D1.1, Amendment 706 reduced Thomas’s original base offense level
from 38 to 36, his total offense level from 37 to 35, and his original guideline
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imprisonment range from 262 to 327 months to 210 to 262 months. See U.S.S.G.,
App. C, Amend. 706 (amending U.S.S.G. § 2D1.1(c)(1)). We now address
whether the district court was authorized to reduce Thomas’s sentence as far as it
did.
Any sentence reduction granted pursuant to § 3582(c)(2) must be “consistent
with applicable policy statements issued by the Sentencing Commission.” 18
U.S.C. § 3582(c)(2); see Williams, 549 F.3d at 1341 (stating that we “must treat
such commentary [in the policy statements] as binding”). The applicable policy
statement provides that “[i]f the original term of imprisonment imposed was less
than the term of imprisonment provided by the guideline range applicable to the
defendant at the time of sentencing, a reduction comparably less than the amended
guideline range . . . may be appropriate.” U.S.S.G. § 1B1.10(b)(2)(B). The
commentary also provides the following example:
In a case in which: (A) the guideline range applicable to
the defendant at the time of sentencing was 70 to 87
months; (B) the defendant’s original term of
imprisonment imposed was 56 months (representing a
downward departure of 20 percent below the minimum
term of imprisonment provided by the guideline range
applicable to the defendant at the time of sentencing);
and (C) the amended guideline range . . . is 57 to 71
months, a reduction to a term of imprisonment of 46
months (representing a reduction of approximately 20
percent below the minimum term of imprisonment
provided by the amended guideline range . . .) would
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amount to a comparable reduction and may be
appropriate.
U.S.S.G. § 1B1.10, comment. (n.3).
Applying Application Note 3 to Thomas’s case, the lowest sentence Thomas
could have received at resentencing would have been 108 months. Thomas’s
original 135-month sentence represented a 48 percent departure from the 262-
month low-end guideline sentence. Similarly, a 108-month sentence would
represent a 48 percent departure from the 210-month low-end amended guideline
sentence.
More important than § 1B1.10, the statutory provision in 21 U.S.C.
§ 841(b)(1)(A)(iii) requires that Thomas is subject to a 10-year, or 120-month,
mandatory minimum sentence. See 21 U.S.C. § 841(b)(1)(A)(iii). Section 5K1.1
of the Guidelines states: “[u]pon motion of the government stating that the
defendant has provided substantial assistance in the investigation or prosecution of
another person who has committed an offense, the court may depart from the
guidelines.” U.S.S.G. § 5K1.1. Although a § 5K1.1 motion permits a court to
depart from the guidelines, we have held that a § 5K1.1 motion does not effectively
waive the statutory minimum to allow a district court to grant a § 3582 reduction
below that statutory minimum. See Williams, 549 F.3d at 1339 (holding that the
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district court was not permitted to grant the defendant a § 3582 sentence reduction
where the defendant had originally been sentenced below the statutory minimum,
because the statutory minimum, which effectively became the defendant’s
“guideline range,” was not reduced by Amendment 706). Under Williams, the
district court was not authorized to reduce Thomas’s sentence below the applicable
statutory minimum, even though the government filed a § 5K1.1 motion at the
original sentencing proceeding.
We also note that binding precedent also forecloses any argument that
Booker and Kimbrough permit district courts to ignore statutory minimum
sentences in § 3582 proceedings. See United States v. Melvin, 556 F.3d 1190,
1192-93 (11th Cir.) (holding that Booker1 and Kimbrough2 apply to original
sentencing proceedings and do “not address motions to reduce a sentence under
§ 3582(c)(2)”), cert. denied, 129 S.Ct. 2382 (2009); see also United States v.
Castaing-Sosa, 530 F.3d 1358, 1362 (11th Cir. 2008) (holding that “the district
court remains bound by statutes designating mandatory minimum sentences even
after the remedial holding of [Booker]”). Finally, although the government did not
raise the issue on appeal, the district court abused its discretion in failing to state
1
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
2
United States v. Kimbrough, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).
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that it had considered the 18 U.S.C. § 3553(a) sentencing factors in determining the
extent of Thomas’s sentence reduction. See United States v. Vautier, 144 F.3d 756,
760 (11th Cir. 1998) (stating that a district court must consider the § 3553(a)
factors to determine whether, and to what extent, to lower a defendant’s sentence).
Accordingly, we vacate Thomas’s sentence and remand to the district court.
VACATED AND REMANDED.
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