Case: 13-12686   Date Filed: 03/05/2014   Page: 1 of 6


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-12686
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:08-cr-20896-MGC-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

JOHNNY JASMIN,

                                                         Defendant-Appellant.

                       ________________________

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

                              (March 5, 2014)

Before PRYOR, MARTIN and BLACK, Circuit Judges.

PER CURIAM:
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       Johnny Jasmin appeals the district court’s denial of his motion for a sentence

reduction pursuant to 18 U.S.C. § 3582(c)(2). The district court denied the motion

based on its conclusion that § 3582(c)(2) does not authorize the court to reduce

Jasmin’s sentence. Upon review, 1 we affirm.

       Jasmin’s offenses and criminal history subjected his guideline range to

computation pursuant to either the drug-quantity table at § 2D1.1(c) or the career-

offender guidelines at § 4B1.1(a). Because the career-offender guideline produced

a higher offense level than the drug-quantity table, the career offender guideline

applied. See U.S.S.G. § 4B1.1(b). Consequently, the district court sentenced

Jasmin based on § 4B1.1, not § 2D1.1. See United States v. Moore, 

,

1327 (11th Cir. 2008).

       Section 3582(c)(2) authorizes a court to reduce the term of imprisonment of

a defendant who has been sentenced based on a sentencing range that the United

States Sentencing Commission has subsequently lowered pursuant to 28 U.S.C.

§ 994(o). 18 U.S.C. § 3582(c)(2). We have previously stated that the scope of

§ 3582(c)(2) is “quite narrow,” as it only authorizes a sentence reduction if “[t]he

Sentencing Commission [has] amended the Sentencing Guidelines, pursuant to 28

U.S.C. § 994(o), that guidelines amendment [has] lowered the defendant’s


       1
        We review a district court’s conclusions regarding the scope of its authority under 18
U.S.C. § 3582(c)(2) de novo. United States v. Lawson, 

, 1319 (11th Cir. 2012).
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sentencing range, and it [is also] one that is listed in U.S.S.G. § 1B1.10(c).”

United States v. Berry, 

, 376 (11th Cir. 2012). Section 3582(c)(2)

does not authorize a reduction in the instant case because no amendment to the

guidelines has had the effect of reducing Jasimin’s sentencing range. It is true that

Amendment 750 has lowered the guideline ranges associated with § 2D1.1(c), but

the district court sentenced Jasmin as a career offender, and his guidelines range

was therefore determined under § 4B1.1, not the drug quantities set forth at

§ 2D1.1. See 

.

       Moreover, it true that the Fair Sentencing Act lowered the statutory

minimum penalties associated with Jasmin’s offenses under 21 U.S.C. § 841(b),

see Fair Sentencing Act of 2010, Pub. L. No. 111-220 § 2(a), 124 Stat. 2372

(2010), and that this modification had the effect of lowering Jasmin’s guideline

range. 2 However, “the FSA is not a guidelines amendment by the Sentencing

Commission, but rather a statutory change by Congress, and thus it does not serve

as a basis for a § 3582(c)(2) sentence reduction.” United States v. Berry, 

, 377 (11th Cir. 2012). For these reasons, Jasmin cannot show that he is

eligible for a sentence reduction under § 3582(c)(2). See 

.


       2
         This is so because the offense level for career offenders under § 4B1.1(b) of the
guidelines depends on the statutory maximum term of imprisonment for the underlying offense.
U.S.S.G. § 4B1.1. Because the FSA lowered the statutory maximum for Jasmin’s offense from
life imprisonment to 40 years, see 21 U.S.C. § 841(b)(1)(B)(iii), his preliminary offense level
under § 4B1.1(b) would be reduced from 37 to 34.
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       Jasmin argues that although the Sentencing Guidelines directed that he be

sentenced as a career offender under § 4B1.1, the district court’s decision to

sentence him below his career-offender guideline range resulted in what was

“functionally” a sentence under § 2D1.1. In support of this argument, Jasmin cites

opinions from several circuits concluding that, even if a defendant’s applicable

guideline range was determined pursuant the career-offender provisions, when a

court nevertheless sentences a defendant based on the drug guidelines, the

defendant is eligible for a reduction under § 3582(c)(2) based on an amendment to

the drug guidelines. See, e.g., United States v. Cardosa, 

, 21 (1st Cir.

2010) (“[W]e conclude that where the defendant’s existing sentence was ultimately

determined by the old crack cocaine guidelines rather than by the career offender

guideline, resentencing is within the discretion of the district court.”); United

States v. Munn, 

, 195 (4th Cir. 2010) (“[A] . . . sentence reduction is

not barred where the sentencing court, following an Overrepresentation Departure,

based the defendant’s ultimate sentence on the Crack Guidelines.”). In United

States v. Moore, 

, 1329-30 (11th Cir. 2008), we discussed two then-

recent district court decisions 3 reaching similar conclusions before determining




       3
        The decisions we discussed are United States v. Ragland, 

(D.D.C.
2008) and United States v. Poindexter, 

(E.D. Pa. 2008).
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that those decisions were distinguishable from the case then before us. We reach

the same determination in the instant case.

       The district court in the instant case departed downward from the career

offender guidelines, but the record does not indicate that it based Jasmin’s ultimate

sentence on the drug guidelines, nor did the court grant an “overrepresentation

departure.” To the contrary, although the district court discussed the possibility

that the guidelines overrepresented Jasmin’s criminal history the court also

discussed other sentencing factors, such as the need to avoid unwarranted

sentencing disparities between Jasmin and his co-defendants, and it ultimately

based Jasmin’s sentence on the 18 U.S.C. § 3553(a) sentencing factors. The

district court did not depart downward to a sentence that fell within the guideline

range under the drug-quantity table that would have applied in the absence of the

career-offender provisions. Instead, the district court rendered a sentence that was

significantly below not only the career-offender guidelines but the drug-quantity

guidelines as well.4 Cf. 

(Duncan, J., dissenting) (noting


       4
         This fact provides an additional basis on which the district court was required to deny
Jasmin’s motion. The Sentencing Guidelines expressly state that a “court shall not reduce the
defendant’s term of imprisonment under [§ 3582(c)(2)] and this policy statement to a term that is
less than the minimum of the amended guideline range.” U.S.S.G. § 1B1.10(b)(2)(B). The only
exception to this rule is if the initial sentence was below the guideline range “pursuant to a
government motion to reflect the defendant’s substantial assistance,” which is not true in this
case. 

        In light of these provisions and the fact that Jasmin’s current sentence is already below
“the minimum of the amended guideline range,” the district court is not authorized to further
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that the resulting sentence after the district court’s downward departure “fit

squarely within what otherwise would have been [the defendant’s] applicable

guideline range”). The cases Jasmin cites are therefore distinguishable, and his

argument fails.

       AFFIRMED.




reduce Jasmin’s sentence. See also 18 U.S.C. § 3582(c)(2) (authorizing a sentence reduction
only “if such a reduction is consistent with the applicable policy statements issued by the
Sentencing Commission.”).
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