Case: 15-10227    Date Filed: 06/08/2015   Page: 1 of 4


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 15-10227
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:12-cr-20571-RNS-1

UNITED STATES OF AMERICA,
                                                                  Plaintiff-Appellee,


                                      versus


KENNETH MICHAEL THOMAS,
                                                             Defendant-Appellant.

                          ________________________

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

                                  (June 8, 2015)

Before TJOFLAT, WILSON and MARTIN, Circuit Judges.

PER CURIAM:

      Kenneth Michael Thomas, a federal prisoner proceeding pro se, appeals the

denial of his motion for a sentence reduction. We affirm.
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       Thomas pleaded guilty to several drug and gun counts. To calculate his

guidelines sentencing range, the district court grouped Thomas’s counts. See

United States Sentencing Guidelines § 3D1.2 (instructing sentencing courts to

group counts “involving substantially the same harm”). 1 The district court

calculated an offense level for each of the grouped counts. See 

Two guidelines sections provided offense levels for the grouped counts: § 2D1.1

(for the drug counts) and § 2K2.1 (for the gun counts). Adhering to the grouping

rules, the district court gave the group the highest offense level, which was

calculated under § 2K2.1—the guideline for the gun counts. See USSG

§ 3D1.3(a).

       Years later, Thomas moved for a sentence reduction. He argued that

Amendment 782, which retroactively amended § 2D1.1, lowered his guideline

range and warranted resentencing. The district court denied his motion, explaining

that Thomas was not entitled to a reduction because his sentence was calculated

using § 2K2.1, not § 2D1.1, so Amendment 782 did not affect his guideline range.

       A district court may reduce a defendant’s sentence if he “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); see also USSG

       1
         The district grouped all but one of Thomas’s counts. He pleaded guilty to one count of
carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c). That
count was not grouped because it required a separate sentence consecutive to any other term of
imprisonment. See § 924(c)(1)(A)(i); USSG § 5G1.2(a)


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§ 1B1.10(a)(1). We review de novo a district court’s legal conclusions regarding

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

, 1326 (11th Cir. 2008). Amendment 782 provides a two-level reduction in

the base offense levels for most drug quantities listed in the table in § 2D1.1(c).

USSG app. C, amend. 782. When it applies, Amendment 782 may serve as the

basis for a sentence reduction. See § 1B1.10(d).

      But Amendment 782 does not apply here. It lowered the offense levels for

§ 2D1.1, but Thomas’s offense level was calculated using § 2K2.1. A reduction is

not authorized by an amendment that addresses one guideline if the sentence was

imposed under another. See United States v. Berry, 

, 376 (11th Cir.

2012) (per curiam); § 1B1.10 cmt. n.1(A); cf. 

(explaining

that the defendants were ineligible for sentence reductions based on an amendment

that lowered base offense levels under § 2D1.1 because the amendment had no

effect on the career-offender guideline, which generated their guideline ranges).

      The district court correctly denied Thomas’s motion. Although § 2D1.1 did

provide the offense level for the grouped drug counts, the offense level for the

group as a whole was calculated using § 2K2.1. See USSG § 3D1.3(a). Thus,

Amendment 782—which lowered the offense levels for § 2D1.1—does not affect

Thomas’s offense level, which would remain unchanged under § 2K2.1 and the




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grouping rules. Because Amendment 782 does not lower Thomas’s applicable

guideline range, he is not eligible for a sentence reduction. 2

       AFFIRMED.




       2
         Thomas also argues that Freeman v. United States, 564 U.S. ___, 

(2011), applies. But Freeman is relevant only to defendants who entered binding plea
agreements, and Thomas’s plea agreement was nonbinding. See United States v. Lawson, 

, 1320 (11th Cir. 2012) (per curiam) (“In Freeman, the question before the Supreme
Court was whether defendants who entered into Rule 11(c)(1)(C) plea agreements were eligible
for § 3582(c)(2) relief.”).


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