Case: 12-12123    Date Filed: 07/05/2013   Page: 1 of 4


                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-12123
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 4:93-cr-04028-WS-WCS-7


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

DAN OTIN JOHNSON,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         ________________________

                                   (July 5, 2013)

Before MARCUS, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:

      Dan Otin Johnson, a federal prisoner appearing pro se, appeals the district

court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction,
              Case: 12-12123     Date Filed: 07/05/2013   Page: 2 of 4


pursuant to Amendment 750 to the Sentencing Guidelines. On appeal, Johnson

asserts that the PSI held him accountable for only 1.5 kilograms of cocaine base

when it calculated his offense level, and his sentence should be reduced based on

that drug quantity under Amendment 750.

      We review de novo a district court’s legal conclusions in regard to the scope

of its authority under the Sentencing Guidelines. United States v. Moore, 

, 1326 (11th Cir. 2008). Facts contained in a PSI are deemed admitted for

sentencing purposes unless a party objects to them clearly and specifically at

sentencing. United States v. Davis, 

, 1303-04 (11th Cir. 2009). A

district court may modify the imprisonment term 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. 18 U.S.C. §

3582(c)(2). Part A of Amendment 750 amended § 2D1.1 by reducing base offense

levels associated with various amounts of crack cocaine under the Drug Quantity

Table in § 2D1.1(c). See U.S.S.G. App. C, Amend. 750, Pt. A. In 2011, the

Sentencing Commission made Parts A and C of Amendment 750 retroactive. 76

Fed. Reg. 41332-01 (2011). Amendment 750 became effective and retroactive on

November 1, 2011. U.S.S.G. App. C, Amends. 750, 759.

      A district court must follow a two-step process in ruling on a § 3582(c)(2)

motion. United States v. Bravo, 

, 780 (11th Cir. 2000). First, the court


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must recalculate the defendant’s sentence “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.” 

Sentencing Guidelines, in determining whether a reduction in the defendant’s

imprisonment term is warranted, “the court shall determine the amended guideline

range that would have been applicable to the defendant if the [applicable

retroactive amendment] had been in effect at the time the defendant was

sentenced.” U.S.S.G. § 1B1.10(b)(1). In making such a determination, the court

shall substitute only the applicable retroactive amendment for the corresponding

guideline provisions that were applied when the defendant was sentenced and shall

leave all other guideline application decisions unaffected. 

step,

the court has the discretion to decide whether to retain the original sentence or to

resentence the defendant under the amended guideline range. See 

.

      “By its terms, § 3582(c)(2) does not authorize a sentencing or resentencing

proceeding.” Dillon v. United States, 560 U.S. __, __, 

, 2690

(2010). The Supreme Court has rejected a defendant’s argument that the district

court erred in failing to correct two mistakes in his original sentence, concluding

that, because such aspects of his sentence were not affected by the amendment to §




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2D1.1, they were outside the scope of the proceeding authorized by § 3582(c)(2).

S. Ct. at 2693-94.

      Here, the record clearly demonstrates that the district court found that

Johnson was accountable for between 5 and 20 kilograms of cocaine base. The

district court sentenced Johnson based on a total offense level of 45, which resulted

in a guideline range of life imprisonment. Although Johnson argues that the district

court erred in holding him accountable for between 5 and 20 kilograms, the district

court must “leave all of its previous factual decisions intact.” United States v.

Hamilton, 

, 337 (11th Cir. 2013) (citing United States v. Cothran, 

, 1562-63 (11th Cir. 1997)). Accordingly, even if Johnson is only held

accountable for 5 kilograms of cocaine base, his total offense level under

Amendment 750 would be 43 and his guideline range would still be life

imprisonment. Thus, Amendment 750 did not lower Johnson’s guideline range and

did not empower, let alone obligate, the district court to reduce his sentence.

      AFFIRMED.




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