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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14834
Non-Argument Calendar
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D.C. Docket No. 6:09-cr-00041-DHB-GRS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JONATHAN LUTHER JONES,
a.k.a. Black Dog,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(April 7, 2017)
Before HULL, WILSON, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Jonathan Luther Jones, proceeding pro se, appeals the district court’s denial
of his motion to reduce his sentence, pursuant to 18 U.S.C. § 3582(c)(2), based on
Amendment 782 to the Sentencing Guidelines. On appeal, in a pro se brief, Jones
argues that the district court erred by determining that Amendment 782 did not
apply to his sentence because the court’s finding, that the guideline range was
based upon Count 49 (the firearm offense) was factually inaccurate. He argues
that Amendment 782 is applicable to reduce his sentence, because he was
sentenced to a 190-month term on Count 38 (the drug offense) and to only 120
months on Count 49. We affirm the district court’s decision.
We review the district court’s conclusions about the scope of its legal
authority under § 3582(c)(2) de novo. United States v. Colon, 707 F.3d 1255, 1258
(11th Cir. 2013).
A district court may modify a defendant’s term of imprisonment if the
defendant was sentenced based on a sentencing range that was later lowered by the
Sentencing Commission. 18 U.S.C. § 3582(c)(2). A reduction, however, must be
consistent with the Sentencing Commission’s policy statements. Id. When the
district court considers a § 3582(c)(2) motion, it must first recalculate the guideline
range under the amended guidelines. United States v. Bravo, 203 F.3d 778, 780
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(11th Cir. 2000). When recalculating the guideline range, it can only substitute the
amended guideline and must keep intact all other guideline decisions made during
the original sentencing. Id. A defendant is not eligible for a sentence reduction
under § 3582(c)(2) when an amendment listed in U.S.S.G. § 1B1.10(d) does not
lower the defendant’s guideline range. U.S.S.G. § 1B1.10(a)(2)(B). A district
court is not authorized to reduce a defendant’s sentence under § 3582(c)(2) where a
retroactively applicable Guidelines amendment reduces his base offense level but
does not alter the guideline range upon which his sentence was based. United
States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008).
Section 5G1.2 of the Sentencing Guidelines provides that when a defendant
is sentenced on multiple counts of conviction, “if the sentence imposed on the
count carrying the highest statutory maximum is adequate to achieve the total
punishment, then the sentences on all counts shall run concurrently. . .” U.S.S.G.
§ 5G1.2(c). Amendment 782 provides a two-level reduction in the base offense
levels for most drug quantities listed in the Drug Quantity Table in U.S.S.G.
§ 2D1.1(c). Id. App. C, amend. 782.
The district court did not err by denying Jones’s motion for a sentence
reduction: Amendment 782 did not lower his guideline range. Although the
presentence investigation report (“PSI”) calculated Jones’s base offense level for
Count 38 (the drug offense) under § 2D1.1, the grouping rules in §§ 3D1.2(c) and
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3D1.3(a) were applied and required the district court to use the higher of Jones’s
adjusted offense levels; the higher was his adjusted offense level on Count 49 (the
firearm offense) as the offense level for the grouped counts. Therefore, the district
court calculated his guideline range using his base offense level not under § 2D1.1,
but under § 2K2.1.
Jones appears to attempt to argue that the district court had actually based
his guideline range on Count 38 (the drug offense) because it imposed a higher
190-month sentence on Count 38 and only a 120-month sentence on Count 49 (the
firearm offense). Thus, he argues, his guideline range is affected by Amendment
782. Jones’s argument is based on a misunderstanding, however. The district
court explained in its denial of Jones’s motion for reconsideration that it had
imposed -- as directed by § 5G1.2 -- a 190-month sentence on Count 38 (the drug
offense) to achieve a total punishment within the 188 to 235 month guideline
range, which the court had calculated based on Count 49: Count 38 had the higher
statutory maximum of the two counts. U.S.S.G. § 5G1.2(c). For Count 49, the
court imposed a lesser 120-month sentence, the statutory maximum for that
offense, to run concurrently, also in accordance with the Guidelines. U.S.S.G. §
5G1.2(c).
Therefore, the court’s imposition of a higher sentence on the drug offense
than the firearm offense was a function of the drug offense’s higher statutory
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maximum and does not undermine that the guideline range was based on the
firearm count. Thus, Amendment 782 did not lower Jones’s applicable guideline
range because Amendment 782 did not change his base offense level under
§ 2K2.1. See Moore, 541 F.3d at 1330; U.S.S.G. § 1B1.10(a)(2)(B). Accordingly,
the district court correctly concluded that Jones was ineligible for a sentence
reduction based on Amendment 782 and we affirm.
AFFIRMED.
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