USA v. James Lester Kimbrell, III, No. 15-15248 (11th Cir. 2016)

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Case: 15-15248 Date Filed: 11/17/2016 Page: 1 of 4 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 15-15248 Non-Argument Calendar ________________________ D.C. Docket No. 1:07-cr-00034-WTM-WLB-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JAMES LESTER KIMBRELL, III, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Georgia ________________________ (November 17, 2016) Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges. PER CURIAM: James Kimbrell, III, proceeding pro se, appeals from the district court’s Case: 15-15248 Date Filed: 11/17/2016 Page: 2 of 4 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 2 Case: 15-15248 Date Filed: 11/17/2016 Page: 3 of 4 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 3 Case: 15-15248 Date Filed: 11/17/2016 Page: 4 of 4 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. 4

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