FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 24, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-16499

Non-Argument Calendar

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D. C. Docket No. 05-20830-CR-PCH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN GIL,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(April 24, 2009)

Before BIRCH, BARKETT and HULL, Circuit Judges.

PER CURIAM:

Juan Gil appeals the district court’s denial of his motion for a reduced
sentence, filed pursuant to 18 U.S.C. § 3582(c)(2), and based on Amendment 706

to the Sentencing Guidelines, which reduced the base offense levels applicable to

crack cocaine offenses. Gil argues that the district court erred in denying his §

3582(c)(2) motion and that under United States v. Moore, 541 F.3d 1323 (11th Cir.

2008), cert. denied, McFadden v. United States, 129 S.Ct. 965 (2009), and cert.

denied, (U.S. Mar. 9, 2009) (No. 08-8554), the court had the discretion to apply a

reduction because he was not sentenced within the career-offender guideline range.

Alternatively, he argues that Moore was wrongly decided and that under United

States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district

court could have reduced his sentence because the Guidelines are merely advisory.

He also contends that the court should have considered the reasonableness of his

sentence and the crack-to-powder-cocaine sentencing disparity, pursuant to

Kimbrough v. United States, 552 U.S. __, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). 

In a § 3582(c)(2) proceeding, “we review de novo the district court’s legal

conclusions regarding the scope of its authority under the Sentencing Guidelines.”

United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002). “We review de

novo questions of statutory interpretation.” United States v. Maupin, 520 F.3d

1304, 1306 (11th Cir. 2008).

A district court may modify a term of imprisonment in the case of a

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defendant who was sentenced based on a sentencing range that has subsequently

been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). In Moore,

we held that, if the defendant was sentenced as a career offender under § 4B1.1,

and the range was not affected by § 2D1.1, then the sentence is not “based on a

sentencing range that has subsequently been lowered.” Moore, 541 F.3d at 1327-

28. There, we noted that the base offense levels under § 2D1.1 played no role in

the calculation of the sentencing guideline range for the defendant. Id. at 1327.

Thus, even though Amendment 706 was retroactive, the district court was not

authorized to reduce the sentence. Id. at 1330.

Like Gil, the defendants in Moore argued that they were eligible for

reductions because they received downward departures, and, thus, were not

sentenced within the career offender guideline ranges. Id. at 1329. In rejecting

this argument, we contrasted two district court cases where the defendants received

subsequent sentencing reductions despite their status as career offenders. Id. In

the first district court case, the sentencing court granted a career offender a

downward departure, pursuant to U.S.S.G. § 4A1.3, based on the district court’s

finding that the criminal history category over-represented the seriousness of the

defendant’s criminal history and “sentenced the defendant within the otherwise

applicable guideline range.” Id. In the second district court case, the sentencing

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court similarly granted a career offender a downward departure under § 4A1.3 and

“assigned the offense level that would have applied absent the career offender

designation.” Id. In both cases, the district courts exercised their discretion in

granting a subsequent sentencing reduction based on their determination that the

defendant’s original sentences were not based on the career offender guideline

range.

Here, Gil’s initial base offense level from § 2D1.1 was a 30, with a three

level reduction for acceptance of responsibility, leaving him with a total offense

level of 27. However, because he was a career offender, he was assigned a base

offense level of 34, pursuant to § 4B1.1(b), and after a three level reduction for

acceptance of responsibility was left with an offense level of 31. He was also

assigned a criminal history category of VI, given his career offender status. Based

on his offense level of 31 and criminal history category of VI, his guideline range

was 188 to 255 months’ imprisonment. After considering the 18 U.S.C. § 3553(a)

factors, the district court sentenced Gil below the guideline range to 108 months’

imprisonment. In doing so, the district court commented, in part, that the guideline

range as determined by § 4B1.1(b) was “ a lot of time for a small transaction.”

Gil argues that the district court’s downward variance to 108 months’

imprisonment shows that it believed the criminal history was overstated by the

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career offender enhancement because this imprisonment term was equivalent to a

base offense level of 31 and criminal history category of I. He notes that the

district court commented during his sentencing hearing that 188 to 255 months was

“ a lot of time for a small transaction.” As such Gil argues that pursuant to the

rationale of the district court cases discussed in Moore, the district court could have

exercised its discretion to grant Gil’s motion for a sentence reduction because his

original sentence demonstrated the district court’s disagreement with the criminal

history category of VI provided for by the career offender enhancement.

While we agree with Gil that the district court expressed its concern with the

amount of time of the sentencing range provided for by the career offender

enhancement, we find that the district court did not then base Gil’s actual sentence

on the “otherwise applicable guideline range” as the district courts did in the cases

cited in Moore. Even if we accept Gil’s argument that the district court’s sentence

of 108 months’ imprisonment is based on a combination of an offense level of 31

and criminal history category of I, the offense level of 31 derives from the career

offender offense levels and not from § 2D1.1. In addition, while imposing the 108

months’ sentence, the district court stated that it was adopting the findings and

conclusion in the Pre-Sentence Investigation Report and also that it was “accepting

the guideline range.” Thus, there is no indication that the court based Gil’s

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sentence on the guideline range, e.g. § 2D1.1, that would have applied absent the

career-offender designation. See Moore, 541 F.3d at 1327-28, 1330; U.S.S.G.

1

§ 1B1.10, comment. (n.1(A)) (prohibiting reduction where “amendment does not

have the effect of lowering the defendant’s applicable guideline range because of

the operation of another guideline”).

Moreover, the district court did not have authority to reduce Gil’s sentence

under Booker based on its reasonableness or the crack-to-powder-cocaine ratio.

See United States v. Jones, 548 F.3d 1366, 1369 (11th Cir. 2008) (holding that

Booker itself does not render a defendant eligible for a sentence reduction under

§ 3582(c)(2)). Accordingly, we affirm.

AFFIRMED. 

 We have also reviewed the sentencing transcripts and note that nowhere does the 1

district court indicate that it is sentencing Gil based on the “otherwise applicable guideline

range” or that it had assigned an offense level that would apply absent the career offender

enhancement. Rather we find that the district court’s imposition of a sentence below the career

offender guideline range was based on its review of the § 3553(a) factors. 

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