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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-12437
Non-Argument Calendar
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D.C. Docket No. 8:09-cr-00543-EAK-MAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM BRISCOE,
a.k.a. Skip,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(February 14, 2018)
Before TJOFLAT, NEWSOM and HULL, Circuit Judges.
PER CURIAM:
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William Briscoe 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. The district court concluded that it was without authority
to reduce Briscoe’s § 3582(c)(2) motion. After review, we vacate the district
court’s order and remand so that the district court may determine whether a
discretionary reduction of Briscoe’s sentence on Count One would be appropriate.
I. BACKGROUND FACTS
A. Conviction and Original Total Sentence
In 2010, Briscoe pled guilty to: (1) one count of conspiracy to possess with
intent to distribute and to distribute five kilograms or more of cocaine, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and 846 (“Count One”); and (2) one count
of possessing a firearm during, and in furtherance of, a drug trafficking crime, in
violation of 18 U.S.C. §§ 924(c)(1) and 2 (“Count Two”).
At sentencing, the district court calculated Briscoe’s offense level of 34 for
Count One, pursuant to U.S.S.G. § 2D1.1(c)(3) (2009), because Briscoe’s drug
offense involved between 22 and 29 kilograms of cocaine. Briscoe’s total offense
level initially was 31, and his criminal history category was IV, which yielded an
advisory guidelines range of 151 to 188 months’ imprisonment on Count One.
However, the district court granted the government’s motion for a downward
departure based on Briscoe’s substantial assistance and departed by five offense
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levels, bringing Briscoe’s total offense level to 26. The district court determined
that Briscoe’s resulting advisory guidelines range was 92 to 115 months’
imprisonment on Count One.
The district court imposed a 92-month sentence on Count One and the
mandatory 60-month consecutive sentence, required by 18 U.S.C.
§ 924(c)(1)(A)(i), on Count Two, for a total sentence of 152 months. The district
court credited Briscoe for “[j]ust under nine months,” which Briscoe had already
served, to be calculated by the Bureau of Prisons (“BOP”).
B. Substantial Assistance Reduction and Amended Judgment
In January 2014, the government filed a motion to further reduce Briscoe’s
sentence on Count One for his continued substantial assistance, pursuant to
U.S.S.G. § 5K1.1, 18 U.S.C. § 3553(e), and Rule 35(b). According to the Rule
35(b) motion, Briscoe testified at his codefendant’s state murder trial, after which
the codefendant was convicted and sentenced to life in prison.
At a March 2014 hearing, the district court, in an oral order, granted the
government’s motion and issued an amended judgment. The amended judgment
stated that Briscoe was committed to the BOP’s custody to serve “a total term of
SIXTY (60) MONTHS as to counts one and two of the Indictment” consisting of
“a term of TIME SERVED as to count one and a term of SIXTY (60) MONTHS
as to count two to run CONSECUTIVE to count one.”
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C. Section 3582(c)(2) Motion for Sentence Reduction
In March 2015, Briscoe filed a pro se § 3582(c)(2) motion to reduce his
sentence on Count One based on Amendment 782 to the Sentencing Guidelines.
After the Federal Defender was appointed to represent him, Briscoe filed a second,
counseled § 3582(c)(2) motion based on Amendment 782 on February 10, 2016.
Briscoe contended that his “time served” sentence on Count One was actually a
1,612-day sentence, of which he had not yet served any portion because the law
required him to serve first his § 924(c) sentence on Count Two. Briscoe attached a
BOP sentence computation indicating that: (1) Briscoe had served 1,612 days
when the district court amended his sentence for Count One to “time served”; (2)
he faced a total term of 60 months plus 1,612 days, or 9 years and approximately 5
months; and (3) his full term of imprisonment (excluding any good time credits)
would expire on March 27, 2019.
The district court denied Briscoe’s § 3582(c)(2) motion. The district court
concluded that Briscoe was “ineligible for Amendment 782 relief” because the
district court had reduced his cocaine-conspiracy-offense sentence for Count One
to time served, and Briscoe was then only serving the firearm-offense sentence for
Count Two. Thus, the district court concluded that it had no authority to further
reduce Briscoe’s sentence based on U.S.S.G. § 1B1.10(b)(2)(C)’s prohibition on
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reducing a term of imprisonment to less than the term the defendant had already
served.
II. DISCUSSION
A. General Principles
A district court may modify a defendant’s term of imprisonment if the
defendant was sentenced based on a sentencing range that has subsequently been
lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Amendment 782
provides a 2-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). See U.S.S.G. App. C,
amend. 782. Amendment 782 applies retroactively. See U.S.S.G. § 1B1.10(d).
“In no event may the reduced term of imprisonment be less than the term of
imprisonment the defendant has already served.” U.S.S.G. § 1B1.10(b)(2)(C).1
Under 18 U.S.C. § 924(c), a person convicted of using, carrying, or
possessing a firearm in furtherance of a crime of violence or a drug trafficking
crime must be sentenced to a mandatory minimum of five years, or 60 months, of
imprisonment. 18 U.S.C. § 924(c)(1)(A)(i). That statute also states that “no term
of imprisonment imposed on a person under this subsection [§ 924(c)] shall run
concurrently with any other term of imprisonment imposed . . . including any term
1
We review de novo a district court’s conclusions regarding the scope of its legal
authority under 18 U.S.C. § 3582(c)(2). United States v. Colon, 707 F.3d 1255, 1258 (11th Cir.
2013).
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of imprisonment imposed for the . . . drug trafficking crime during which the
firearm was . . . possessed.” 18 U.S.C. § 924(c)(1)(D)(ii).
While § 924(c) does not specify in what order the various sentences should
run, the legislative history to the addition of § 924(c)(1)(D) provides that “the
Committee intends that the mandatory sentence under the revised subsection
924(c) be served prior to the start of the sentence for the underlying or any other
offense.” S. Rep. No. 98-225, at 313–14 (1984), reprinted in 1984 U.S.C.C.A.N.
3182, 3492 (emphasis added).
This Court has concluded in both the direct appeal context and the habeas
context that a mandatory consecutive sentence under § 924(c) must be served
before any other sentence for the companion crime of violence or drug trafficking
offense. See Jackson v. United States, 976 F.2d 679, 682 (11th Cir. 1992) (“The
legislative history and the words of the legislation indicate that Congress intended
that the five year non-parolable sentence [for a § 924(c) conviction] be served first,
followed by the sentence for the underlying offense,” which was parolable); United
States v. Brundidge, 170 F.3d 1350, 1354 & n.6(11th Cir. 1999) (concluding based
on Jackson that the district court erred “in sentencing Brundidge to serve his five-
year sentence for violating Section 924(c) after the sentence for Counts I and II”
but determining that the error was harmless because, unlike the defendant in
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Jackson, Brundidge did not show how his non-parolable sentence for Counts I and
II could be shortened).
B. Briscoe’s Claim
As a preliminary matter, it is undisputed that, after Amendment 782,
Briscoe’s base offense level of 34 for his cocaine conspiracy offense in Count One
would be lowered to 32 and, consequently, his advisory guidelines range would be
reduced from 151 to 188 months’ imprisonment to 121 to 151 months’
imprisonment. See U.S.S.G. § 2D1.1(c)(4). Therefore, Amendment 782 does
lower Briscoe’s advisory guidelines range on the cocaine conspiracy offense in
Count One. The question then is whether the district court was correct that
Briscoe’s sentence on Count One could not be reduced because it was “already
served” within the meaning of U.S.S.G. § 1B1.10(b)(2)(C).
We conclude that the district court was not correct and that Briscoe was
eligible for a § 3582(c)(2) sentence reduction on Count One. Under this Court’s
precedent, Briscoe had to serve his mandatory 60-month § 924(c) sentence on
Count Two before serving his cocaine conspiracy sentence on Count One. See
Jackson, 976 F.2d at 682; Brundidge, 170 F.3d at 1354. Briscoe was sentenced in
July 2010, and was given approximately 9 months credit for pretrial detention.
Thus, when Briscoe filed his pro se § 3582(c)(2) motion on March 23, 2015, he
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had not “already served,” and possibly may not have even begun to serve, his
Count One sentence.
Moreover, in light of this Court’s precedent, we construe the district court’s
March 2014 amended judgment—reducing Briscoe’s 92-month sentence on Count
One to “time served”—to mean that Briscoe’s Count One sentence was reduced to
an amount of time equal to the time Briscoe had already served, pursuant to the
original judgment, on Count Two, that is, to 1,612 days (or roughly 54 months). In
other words, Briscoe is presently serving the time remaining on his Count One
sentence of 1,612 days.
For these reason, U.S.S.G. § 1B1.10(b)(2)(C) did not prohibit the district
court from granting Briscoe’s § 3582(c)(2) motion. Accordingly, we vacate the
district court’s order denying Briscoe’s § 3582(c)(2) motion and remand for the
district court to consider whether, and to what extent, to reduce Briscoe’s sentence
on Count One. Because Briscoe received a substantial assistance reduction from
his original 92-month sentence on Count One, on remand, the district court should
consider whether a comparable reduction to the amended advisory guidelines range
is appropriate, but we express no view on the matter. See United States v. Liberse,
688 F.3d 1198, 1199-1200, 1203 (11th Cir. 2012); U.S.S.G. § 1B1.10(b)(2)(B).
We further note that because the BOP indicates that Briscoe is currently scheduled
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for release on July 18, 2018, the district court should expedite its handling of
Briscoe’s § 3582(c)(2) motion.
VACATED and REMANDED.
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