[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14-10563

Non-Argument Calendar

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D.C. Docket No. 8:05-cr-00447-SDM-MAP-2

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

JARRETT CANNION, 

a.k.a. Jee, 

 Defendant-Appellant. 

________________________

No. 14-11217

Non-Argument Calendar

________________________

D.C. Docket No. 8:05-cr-00447-SDM-MAP-2

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

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2

JARRETT CANNION, 

a.k.a. Jee,

 Defendant-Appellant. 

________________________

Appeals from the United States District Court

for the Middle District of Florida

________________________

(January 27, 2015)

Before ROSENBAUM, JULIE CARNES, and FAY, Circuit Judges.

PER CURIAM: 

Jarrett Cannion is a pro se federal prisoner serving a 292-month sentence of 

imprisonment for crack-cocaine offenses of which he was convicted in 2008. In 

2013, Cannion filed a motion under 18 U.S.C. § 3582(c)(2) to reduce his sentence 

based on Amendment 750 of the United States Sentencing Guidelines (“U.S.S.G.” 

or “Guidelines”), which lowered the guideline ranges for crack-cocaine offenses, 

as well as the Fair Sentencing Act of 2010 (“FSA”), which lowered the statutory 

mandatory minimums applicable to certain crack-cocaine offenses. The district 

court denied the motion, concluding that Cannion was not entitled to relief under 

§ 3582(c)(2) because (1) the FSA was not a Guidelines amendment and did not 

apply retroactively, and (2) Amendment 750 did not lower Cannion’s applicable 

guideline range. 

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On appeal, Cannion argues that the district court abused its discretion in 

addressing his § 3582(c)(2) motion based on Amendment 750. The government, in 

turn, concedes that the district court erred in finding Cannion ineligible for relief 

under § 3582(c)(2), and it asks this Court to reverse the denial and remand for 

consideration of whether Cannion should receive a discretionary sentence 

reduction. Because the district court erroneously concluded that it lacked the 

authority to entertain Cannion’s motion, we reverse and remand.1

Cannion was convicted in 2008 of one count of distributing at least five

grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii), and 

one count of conspiring to distribute at least fifty grams of cocaine base, in 

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii) and 846. In the presentence 

investigation report (“PSR”), the probation officer held Cannion responsible for 

77.88 grams of crack cocaine, yielding a base offense level of 30 under U.S.S.G. 

Manual § 2D1.1. After a three-level reduction for acceptance of responsibility, 

Cannion’s total offense level was 27. With a criminal history category of VI, the 

PSR provided a guideline range between 130 and 162 months’ imprisonment. 

At sentencing, the district court granted the government’s request for an 

upward departure under U.S.S.G. Manual § 4A1.3 based on Cannion’s extensive 

 1

 Cannion does not expressly challenge the denial of his motion based on the FSA, and 

therefore arguably has abandoned the issue. See Sapuppo v. Floridian Allstate Ins. Co., 739 F.3d 

678, 680-81 (11th Cir. 2014). In any case, we agree with the government that the district court 

correctly determined that the FSA did not provide Cannion a basis for relief under § 3582(c)(2). 

See United States v. Berry, 701 F.3d 374, 377 (11th Cir. 2012).

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criminal history. The court increased the base offense level from 30 to 38, and 

then applied the three-level reduction for acceptance of responsibility, leaving 

Cannion with a total offense level of 35 and a new guideline range of 292 to 365 

months in prison. The court then imposed a total sentence of 292 months in prison.

In December 2013, Cannion moved for a reduction in his sentence under 

§ 3582(c)(2), based on Amendment 750 and the FSA. Amendment 750 took effect 

in November 2011, lowering the base offense levels applicable to crack-cocaine 

offenses by revising the drug-quantity tables in U.S.S.G. Manual § 2D1.1(c). See 

U.S.S.G. App. C., amend. 750. For an offender like Cannion, who was held 

responsible for between 28 and 112 grams of crack cocaine, Amendment 750 

reduced the base offense level from 30 to 26. Compare U.S.S.G. Manual 

§ 2D1.1(c)(7) (2007), with U.S.S.G. Manual § 2D1.1(c)(7) (2011). Amendment 

750 is retroactively applicable and may be enforced through a § 3582(c)(2) motion. 

U.S.S.G. Manual § 1B1.10(c). 

In denying Cannion’s motion, the district court determined that Amendment 

750 did not have the effect of lowering his guideline range because, solely as a 

result of the upward departure under § 4A1.3, “Cannion’s 292-month sentence was 

not derived from the amount of cocaine base for which he was responsible.”2

 

 2 It appears that Cannion filed multiple notices of appeal in this case, triggering the 

opening of two appeal numbers (14-10563 and 14-11217). Because both notices indicate

Cannion’s intent to appeal the district court’s denial of his § 3582(c)(2) motion, we direct the 

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Because the district court erred in finding Cannion ineligible for a sentence 

reduction based on the § 4A1.3 departure, we reverse and remand.

We review de novo a district court’s legal conclusions on the scope of its 

authority under § 3582(c)(2) and the Sentencing Guidelines. United States v. 

Webb, 565 F.3d 789, 792 (11th Cir. 2009). 

Section § 3582(c)(2) grants federal courts the power to reduce a term of 

imprisonment if the defendant was sentenced based on a sentencing range that the 

Sentencing Commission subsequently lowered through a retroactive amendment to 

the Sentencing Guidelines. Dillon v. United States, 560 U.S. 817, 824-25, 130 S. 

Ct. 2683, 2690 (2010); 18 U.S.C. § 3582(c)(2); see U.S.S.G. Manual 

§ 1B1.10(a)(1). If a defendant is eligible for a sentence reduction, the court may, 

in its discretion, reduce the term of imprisonment after considering the sentencing 

factors listed in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3582(c)(2). 

The Sentencing Commission has explained that a reduction is not authorized 

under the Guidelines if a retroactive amendment “does not have the effect of 

lowering the defendant’s applicable guideline range.” U.S.S.G. Manual 

§ 1B1.10(a)(2)(B). The Commission defines the “applicable guideline range,” in 

turn, as “the guideline range that corresponds to the offense level and criminal 

 

Clerk’s Office to DISMISS as duplicative appeal no. 14-11217, which was based on the second, 

untimely notice of appeal docketed by the district court on March 20, 2014.

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history category determined pursuant to § 1B1.1(a), which is determined before 

consideration of any departure provision in the Guidelines Manual or any 

variance.” U.S.S.G. Manual § 1B1.10, cmt. (n.1(A)); see United States v. 

Hippolyte, 712 F.3d 535, 540-41 (11th Cir.), cert. denied, 134 S. Ct. 181 (2013). 

Because the district court did not exclude the § 4A1.3 departure in determining 

Cannion’s “applicable guideline range,” the court erred. See United States v. 

Hargrove, 732 F.3d 1253, 1254-55 & n.1 (11th Cir. 2013) (“In Amendment 759, 

the Sentencing Commission made explicit that § 4A1.3 departures are not part of 

the ‘applicable guideline range.’”); U.S.S.G. App. C, amend. 759. Nor was the 

error harmless. Instead, Cannion is entitled to have his § 3582(c)(2) motion 

addressed on the merits.

Amendment 750 had the effect of lowering Cannion’s “applicable guideline 

range.” See U.S.S.G. Manual § 1B1.10(a)(2)(B). In making this determination, 

we first look to the guideline range that corresponds to the offense level and 

criminal-history category without including the § 4A1.3 upward departure. See 

Hargrove, 732 F.3d at 1254-55 & n.1. Here, Cannion’s “applicable guideline 

range” before Amendment 750 was 130 to 162 months’ imprisonment (with a base 

offense level of 30). 

Next, we must “determine the amended guideline range that would have 

been applicable to the defendant if [Amendment 750] had been in effect at the time 

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the defendant was sentenced.” U.S.S.G. Manual § 1B1.10(b)(1); see Webb, 565 

F.3d at 793. In doing so, we must “substitute only [Amendment 750] for the 

corresponding guideline provisions that were applied when the defendant was 

sentenced and shall leave all other guideline application decisions unaffected.” 

U.S.S.G. Manual § 1B1.10(b)(1). As a result, had Amendment 750 been in effect 

at the time of his sentencing, Cannion’s guideline range would have been 92 to 115 

months’ imprisonment (with a base offense level of 26). 

But because Cannion is subject to a 120-month statutory mandatory 

minimum, his guideline range would be simply 120 months’ imprisonment. See 18 

U.S.C. § 841(b)(1)(B)(iii) (2008); U.S.S.G. Manual § 5G1.1(b); see also Hargrove, 

732 F.3d at 1255. Amendment 750, therefore, lowered Cannion’s “applicable 

guideline range” from a range of 130 to 162 months to a range of 120 months. 

U.S.S.G. Manual § 1B1.10, cmt. (n.1(A)); see 18 U.S.C. § 3582(c)(2). 

In sum, the district court erroneously concluded that it lacked the authority 

to reduce Cannion’s sentence under § 3582(c) by basing its decision on the 

§ 4A1.3 departure. See Hargrove, 732 F.3d at 1254-55 & n.1. We therefore 

reverse the denial of Cannion’s motion and remand for a determination of whether 

Cannion should receive a discretionary sentence reduction in consideration of the 

Sentencing Guidelines and the § 3553(a) sentencing factors. See 18 U.S.C. 

§ 3582(c)(2).

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Appeal no. 14-10563 is REVERSED and REMANDED; Appeal no. 14-

11217 is DISMISSED as duplicative.

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