FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

02/11/2000

THOMAS K. KAHN

CLERK

 * Honorable Maurice B. Cohill, Jr., Senior U.S. District Judge for the Western District of

Pennsylvania, sitting by designation.

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

__________________________

No. 97-5575

__________________________

D.C. Docket No. 91-577-CR-UUB

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN CAMILO BRAVO,

Defendant-Appellant.

__________________________

Appeal from the United States District Court

for the Southern District of Florida

__________________________

(February 11, 2000)

Before EDMONDSON and BARKETT, Circuit Judges, and COHILL*

, Senior

District Judge.

BARKETT, Circuit Judge:

Appellant Juan Camilo Bravo appeals the district court’s denial of his

request for a downward departure and application of the “safety valve” provision,
2

18 U.S.C. § 3553(f), in conjunction with the modification of his sentence pursuant

to 18 U.S.C. § 3582(c)(2). On appeal, Bravo argues that the district court erred by

concluding that it lacked authority to depart from the sentencing guidelines or to

apply the “safety valve” provision. We affirm.

BACKGROUND

On August 30, 1993, the district court sentenced Juan Camilo Bravo for

conspiracy to import cocaine in violation of 21 U.S.C. §§ 952(a) and 963 in

accordance with the then-applicable 1993 Federal Sentencing Guidelines. Bravo

started with a base offense level of 40 for importing 897 kilograms of cocaine, less

three levels for acceptance of responsibility under U.S.S.G. § 3E1.1(a), resulting in

a total offense level of 37. The guideline penalty range for level 37 is between 210

and 262 months’ imprisonment and the district court sentenced Bravo to 210

months’ imprisonment.

Subsequent to the beginning of Bravo’s term of incarceration, three relevant

events transpired. First, Congress amended U.S.S.G. § 2D1.1 to provide a base

offense level of 38 rather than 40 for all offenses involving amounts in excess of

150 kilograms of cocaine, giving district courts discretionary authority to apply the

amendment retroactively pursuant to U.S.S.G. § 1B1.10. Second, Congress
 2

 18 U.S.C. § 3553(f) states, in pertinent part:

Notwithstanding any other provision of law, in the case of an offense under [21

U.S.C. § 963], the court shall impose a sentence pursuant to guidelines promulgated

by the United States Sentencing Commission . . . without regard to any statutory

minimum sentence, if the court finds at sentencing . . . that – 

(1) the defendant does not have more than 1 criminal history point . . .;

(2) the defendant did not use violence or credible threats of violence or

possess a firearm or other dangerous weapon . . . in connection with the

offense, 

(3) the offense did not result in death or serious bodily injury to any person;

(4) the defendant was not an organizer, leader, manager, or supervisor of

others in the offense . . . and was not engaged in a continuing criminal

enterprise . . .; and

(5) not later than the time of the sentencing hearing, the defendant has

truthfully provided to the Government all information and evidence the

defendant has concerning the offense . . . .

 3 18 U.S.C. § 3582(c)(2) provides:

The court may not modify a term of imprisonment once it has been imposed except

that . . . in the case of a defendant who has been sentenced to a term of imprisonment

based on a sentencing range that has subsequently been lowered by the Sentencing

Commission pursuant to 28 U.S.C. 994(o), . . . the court may reduce the term of

imprisonment, after considering the factors set forth in section 3553(a) to the extent

they are applicable, if such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission.

3

enacted the “safety valve,” 18 U.S.C. § 3553(f),2 which was incorporated into the

sentencing guidelines as U.S.S.G. § 5C1.2, but was not included in the list of

guideline amendments which may be applied retroactively under U.S.S.G. §

1B1.10(c). Third, Bravo developed renal failure and is now on dialysis in a prison

medical center.

Bravo filed a motion in the district court requesting a sentencing adjustment

pursuant to 18 U.S.C. § 3582(c)(2)3

 in order to take advantage of the retroactive
4

change in sentencing guideline § 2D1.1. Also in that motion, Bravo requested both

a downward departure in his sentence because of his extraordinary medical

condition, and an application of the safety valve. The district court granted Bravo

the benefit of the § 2D1.1 amendment, which reduced his offense level to 35 with a

guideline range of 168 to 210 months; he was sentenced to 168 months’

imprisonment. However, the district court determined that it lacked jurisdiction to

grant the downward departure or to apply the safety valve. Bravo now appeals that

determination.

DISCUSSION

Under 18 U.S.C. § 3582(c)(2), a district court has discretion to reduce the

term of imprisonment of an already incarcerated defendant when that defendant

was sentenced based on a sentencing range that was subsequently lowered by the

Sentencing Commission pursuant to 28 U.S.C. § 994(o). In considering a motion

for such a reduction, we have held that a district court must engage in a two-part

analysis.

Initially, the court must recalculate the sentence under the amended

guidelines, first determining a new base level by substituting the amended

guideline range for the originally applied guideline range, and then using that new

base level to determine what ultimate sentence it would have imposed. “In
 4

 As discussed in footnote five, infra, we note that, although the district court did so in this case,

a district court is not required at a Section 3582 hearing to reapply a downward departure that it had

previously applied at the original sentencing hearing. See Vautier, 144 F.3d at 760-61.

5

undertaking this first step, only the amended guideline is changed. All other

guideline application decisions made during the original sentencing remain intact.” 

United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998), cert. denied, 119 S.

Ct. 888 (1999) (citing U.S.S.G. § 1B1.10(b), comment n.2). The district court

correctly performed this portion of its task, finding that, under the revised

guidelines, Bravo would have had a base level of 38, which, after again departing

three levels for acceptance of responsibility,4

 would have been reduced to level 35. 

The next step is for the court to decide whether, in its discretion, it will elect

to impose the newly calculated sentence under the amended guidelines or retain the

original sentence. This decision should be made in light of the factors listed in 18

U.S.C. § 3553(a). See Vautier, 144 F.3d at 760 (“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.”). One of the factors listed in § 3553(a) is a defendant’s need for

medical care. The district court specifically considered Bravo’s “serious medical

condition and his age,” noting this as a reason for choosing, in accordance with §

3553(a), to lessen Bravo’s sentence from 210 months to 168 months.
 5

 Bravo alleges that he is currently suffering from renal failure, and is undergoing dialysis at his

detention facility in Springfield, Missouri. Bravo asks to be released from incarceration so that he

may travel to Columbia to receive a kidney transplant from his mother. Bravo has stated that he

cannot afford the cost of a kidney transplant while incarcerated, but can afford one in Columbia.

We have no evidence before us either supporting or refuting Bravo’s assertions about his health

condition or the “inadequate medical care” he is receiving. The merits of these claims are not before

us in this appeal, which involves only the question whether of the district court had jurisdiction to

depart from the sentencing guidelines in its § 3582(c)(2) sentence reduction.

 6 Nothing in this opinion is meant to change that portion of Vautier where we said that a district

court, when determining pursuant to Section 3582(c)(2) what sentence it would have imposed under

the amended guideline, has the discretion to decide whether to reapply an earlier downward

departure. See Vautier, 144 F.3d at 760-61. This practice is allowed because a discretionary

decision to permit a downward departure from the original guideline range “is not a ‘guideline

application decision’ that remains intact when the court considers the new Guideline range.” Id. at

761.

6

Bravo argues that the district court had both the ability and the obligation to

reduce his sentence further. Bravo first urges us to find that the district court erred

by refusing to depart downward due to his extraordinary medical condition.5

 This

Circuit has been very clear in holding that a sentencing adjustment undertaken

pursuant to § 3582(c)(2) does not constitute a de novo resentencing. See United

States v. Cothran, 106 F.3d 1560, 1562 (11th Cir. 1997) (holding that “§

3582(c)(2) and related sentencing guidelines do not contemplate a full de novo

resentencing”). Indeed, we have held that all original sentencing determinations

remain unchanged with the sole exception of the guideline range that has been

amended since the original sentencing. See Vautier, 144 F.3d at 760.6

 A district

court’s discretion has, therefore, clearly been cabined in the context of a § 3582(c)
7

sentencing reconsideration. In light of this limit, we find that the district court was

correct in holding that it lacked jurisdiction to depart downward because of

Bravo’s medical condition to an extent greater than that authorized under § 3582(c)

based on the amended guideline provision.

Because we find that the district court was correct in refusing to depart

downward to account for Bravo’s ill health, we do not reach the question whether

the safety valve statute, 18 U.S.C. § 3553(f), should be applied at a limited §

3582(c) rehearing. The safety valve applies where application of the guidelines

would result in imposition of a sentence that is lower than the statutory minimum

of 10 years. In the case before us, Bravo’s revised sentence of 168 months, or 14

years, does not trigger possible application of the safety valve, and thus the

question of whether the district court would have jurisdiction to apply the

provision had Bravo’s sentence been reduced below 10 years is irrelevant here.

Finally, we find that the district court was correct in declining to consider

Bravo’s Eighth Amendment claim. As stated above, § 3582(c), under which this

sentencing hearing was held, does not grant to the court jurisdiction to consider

extraneous resentencing issues such as this one. Bravo must instead bring such a

collateral attack on his sentence under 28 U.S.C. § 2255.

AFFIRMED.