FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 26, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-11735

Non-Argument Calendar

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D. C. Docket No. 99-06018-CR-WJZ

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

MICHAEL ANTHONY DEWITT, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(September 26, 2008)

Before BLACK, PRYOR and FAY, Circuit Judges.

PER CURIAM:
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Michael Anthony Dewitt appeals, pro se, the district court’s denial of his

motion for modification of sentence, pursuant to 18 U.S.C. § 3582(c)(2). Dewitt

argues that Amendments 706 and 715, both retroactively applicable, alter his

guideline imprisonment range. The government concedes that the district court

erred and that Amendments 706 and 715 reduce Dewitt’s guideline imprisonment

range. For the reasons set forth below, we remand. 

I. 

Dewitt was indicted in Case No. 98-6097 for, inter alia, possession with

intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Dewitt

was indicted in Case No. 99-6018 for possession with intent to distribute cocaine,

in violation of § 841(a)(1). On Dewitt’s unopposed motion, the district court

consolidated Case No. 98-6097 and Case No. 99-6018 for the purposes of pleading

and sentencing. 

Dewitt was responsible for 119.4 grams of crack cocaine in relation to Case

No. 98-6097 and 141.3 grams of cocaine and 4.4 grams of crack cocaine in relation

to Case No. 99-6018. At sentencing, the district court grouped Dewitt’s offenses,

pursuant to U.S.S.G. § 3D1.2(d), and converted to their marijuana equivalents and

added together the drug quantities involved, pursuant to U.S.S.G. § 2D1.1,

comment. (n. 6). Accordingly, the district court held Dewitt accountable for 2,504
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kilograms of marijuana. Based on this calculation, the district court set Dewitt’s

base offense level at 32, pursuant to U.S.S.G. § 2D1.1. Based on the application of

enhancements and reductions not at issue here, the district court set Dewitt’s total

offense level at 35. The district court set Dewitt’s criminal history category at I

and determined that his guideline imprisonment range was 168 to 210 months. 

Ultimately, the district court sentenced Dewitt to 180 months’ imprisonment as to

Case No. 98-6097 and 180 months’ imprisonment as to Case No. 99-6018, with

these terms to be served concurrently. 

On March 11, 2008, Dewitt filed a motion to reduce sentence, pursuant to

§ 3582(c)(2). Dewitt argued that the guideline imprisonment range for his crackcocaine offense subsequently had been lowered by Amendment 706 to the

Sentencing Guidelines. On March 28, 2008, the district court denied Dewitt’s

§ 3582(c)(2) motion. The district court reasoned that Dewitt’s motion was moot

because, “[w]hile [Dewitt] may be entitled to a reduction in sentence for the crack

cocaine offense, because that sentence was set to run concurrently with the cocaine

sentence, which [was] of equal length, a reduction of the crack cocaine sentence

would not reduce [Dewitt’s] term of imprisonment.” Dewitt filed a motion for

reconsideration, which the district court denied.

II.
 The parties do not dispute that Amendments 706 and 715 are retroactive. Indeed, those 1

amendments listed in U.S.S.G. § 1B1.10(c) may be applied retroactively through a § 3582(c)(2)

motion, and Amendments 706 and 715 are listed in § 1B1.10(c). See United States v. Pelaez,

196 F.3d 1203, 1205 n.3 (11th Cir. 1999); U.S.S.G. 1B1.10(c).

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We review a district court’s refusal to reduce a sentence, pursuant to

§ 3582(c)(2), for an abuse of discretion. United States v. Vautier, 144 F.3d 756,

759 n.3 (11th Cir. 1998). Under § 3582(c)(2), a district court may reduce an

already-incarcerated defendant’s sentence if the defendant’s sentence was

determined using a guideline imprisonment range that subsequent retroactive

amendments to the Guidelines have reduced and if the district court has considered

the applicable factors set forth in 18 U.S.C. § 3553(a) and has determined that a

reduction would be consistent with the policy statements issued by the Sentencing

Commission. 18 U.S.C. § 3582(c); United States v. Bravo, 203 F.3d 778, 780-81 1

(11th Cir. 2000). We have held that, when confronted with a § 3582(c)(2) motion,

the district court must apply the following two-step analysis:

First, the court must substitute the amended guideline range for the

originally applied guideline range and determine what sentence it

would have imposed. In undertaking this first step, only the amended

guideline range is changed. All other guideline application decisions

made during the original sentencing remain intact. Second, in light of

the conclusion reached in the first step, the court must consider the

factors listed in § 3553(a) and determine whether or not to reduce the

defendant’s original sentence.

Vautier, 144 F.3d at 760 (citations omitted). 
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By way of Amendment 706, the Commission amended the U.S.S.G.

§ 2D1.1(c) drug quantity table to reduce crack-cocaine offense levels by two. 

U.S.S.G. App. C, Amend. 706. 

By way of Amendment 711, which was in effect when the district court

considered Dewitt’s motion, the Commission instructed district courts to calculate

the offense levels for offenses involving both crack cocaine and another drug by

(1) determining the base offense level for the amount of crack cocaine involved;

(2) applying that base offense level to a “Marijuana equivalency” table to

determine an equivalent amount of marijuana; (3) determine the marijuana

equivalency for the other drug amount involved using the traditional conversion

method; and (4) add together all of the marijuana amounts calculated and

determine the base offense level for this total amount of marijuana. U.S.S.G. App.

C, Amend. 711. 

By way of Amendment 715, which came into effect on May 1, 2008, the

Commission undid Amendment 711 and instructed district courts to calculate the

offense levels for offenses involving both crack cocaine and another drug by

(1) determine the marijuana equivalency for all of the drug amount involved using

the traditional conversion method; (2) subtract two levels from that amount; and

(3) determine the base offense level for this altered amount of marijuana. U.S.S.G.
6

App. C, Amendment 715. 

III.

The district court abused its discretion in denying Dewitt’s § 3582(c)(2)

motion. See Vautier, 144 F.3d 756, 759 n.3. In concluding that the motion was

moot because Dewitt would have to serve a 180-month sentence for his cocaine

offense regardless of any modification of the sentence for his crack-cocaine

offense, the district court overlooked that the sentences were reached using a

combined offense level that took into account the amounts of cocaine and crack

cocaine involved. Also, the district court failed to apply the requisite two-step

analysis. See id. The district court did not determine the guideline imprisonment

range that would result from the method described in Amendment 711 or apply

§ 3553(a) to determine whether a modification was merited. Accordingly, the

district court abused its discretion, and we remand the case for reconsideration of

Dewitt’s motion. See id. 

We decline to apply Amendment 711 ourselves to determine whether a

different guideline imprisonment range would have resulted, as Amendment 711

no longer is in effect. We note, however, that under now-effective Amendment

715, Dewitt’s base offense level would be 30, total offense level 33, and guideline

imprisonment range 135 to 168 months. See U.S.S.G. App. C, Amend. 715. This
7

range is significantly lower than that calculated by the district court. On remand,

the district court should consider the effect of Amendment 715. 

REMANDED.