[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

_______ _________________ No. 14

- 10563 Non

- Argument Calendar

________________________ 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 Case: 14-11217 Date Filed: 01/27/2015 Page: 1 of 82 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 sen tence 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 cr ack

- 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 G uidelines amendment and did not apply retroactively, and (2) Amendment 750 did not lower Canni on’s applicable guideline range.

Case: 14-11217 Date Filed: 01/27/2015 Page: 2 of 83 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 coca ine , 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 betwe en 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).

Case: 14-11217 Date Filed: 01/27/2015 Page: 3 of 84 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 month s in pri son . 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 off ense levels applicable to crack

- cocain e 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

. Comp are 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 co urt 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 resp onsible.” 2

2 It appears that Cannion filed multiple notices of appeal in this case, trigg ering the opening of two app eal 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

Case: 14-11217 Date Filed: 01/27/2015 Page: 4 of 85 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 C ir. 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 Sen tencing 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 r eduction 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, w hich was based on the second, untimely notice of appeal docketed by the district court on March 20, 2014

.

Case: 14-11217 Date Filed: 01/27/2015 Page: 5 of 86 history category determined pursuant to § 1B1.1(a), which is determined before consideration of any departure provisio n in the Guidelines Manual or any variance.” U.S.S.G. Manual § 1B1.10, c mt. ( 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 ‘ a pplicable 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 lower ing 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 crim inal

- 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

Case: 14-11217 Date Filed: 01/27/2015 Page: 6 of 87 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, h ad Amendment 750 been in effect at the time of his sentencing, Cannion’s gu ideline 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 Cannio n’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. W e 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). Case: 14-11217 Date Filed: 01/27/2015 Page: 7 of 88 Appeal no. 14

- 10563 is REVERSED and REMANDED ; Appeal no. 14

- 11217 is DISMISSED as duplicative.

Case: 14-11217 Date Filed: 01/27/2015 Page: 8 of 8