Case: 13-12897    Date Filed: 03/07/2014   Page: 1 of 4


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-12897
                           Non-Argument Calendar
                         ________________________

                    D.C. Docket No. 1:92-cr-00571-DTKH-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                        versus

PEDRO HIDALGO,
a.k.a. Pedro Hildago,
a.k.a. Peter Hildalgo,
a.k.a. Pedro Alvarez-Hidalgo,
a.k.a. Pedro Joaquin Hidalgo-Alvarez,
a.k.a. Petey,
a.k.a. El Flaco,
a.k.a. Pedro Alvarez,

                                                            Defendant-Appellant.

                         ________________________

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

                                (March 7, 2014)
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Before TJOFLAT, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:

      Pedro Hidalgo appeals the district court’s denial of his motion to reduce his

sentence pursuant to 18 U.S.C. § 3582(c)(2). On appeal, Hidalgo argues that

Amendment 591 of the United States Sentencing Guidelines (USSG) applies

retroactively to his sentence and requires that he be resentenced under USSG

§ 2X1.1, which would result in a three-level reduction in his total offense level.

After careful review, we affirm.

                                           I.

      On April 28, 1995, a federal grand jury sitting in the Southern District of

Florida returned an indictment charging Hidalgo with a variety of drug trafficking

and firearms offenses relating to his participation in a scheme to import cocaine

into the United States. After a jury trial, Hidalgo was convicted of (1) conspiracy

to import cocaine, in violation of 21 U.S.C. §§ 952(a) and 963 (Count 1); (2)

conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C.

§§ 841(a)(1) and 846 (Count 2); (3) importation of cocaine, in violation of 21

U.S.C. § 952(a) (Count 3); (4) attempt to possess with intent to distribute cocaine,

in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 4); (5) use of a firearm in

relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 7);




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and (6) receipt of firearms while under indictment, in violation of 18 U.S.C.

§ 922(n) (Count 9).

      The presentence investigation report applied the 1994 Guideline Manual to

calculate Hidalgo’s guideline range. For Counts 1–4, the base offense level was

38, pursuant to USSG § 2D1.1. After factoring in various enhancements, the

district court found that the final offense level was 43. As a result, Hidalgo was

sentenced to life imprisonment for each of these four counts.

      On April 29, 2013, Hidalgo filed a motion to reduce his sentence pursuant to

18 U.S.C. § 3582, which the district court denied. Hidalgo now appeals.

                                         II.

      We review the denial of a motion for a reduction of sentence pursuant to 18

U.S.C. § 3582(c)(2) for abuse of discretion. United States v. Jules, 

,

1241 (11th Cir. 2010). “A district court by definition abuses its discretion when it

makes an error of law.” Koon v. United States, 

, 100, 

,

2047 (1996).

      Hidalgo argues that he is entitled to a reduction of his sentence because

Amendment 591 instructs courts to apply USSG § 2X1.1 for offenses that involve

an attempt or a conspiracy. If the district court had applied § 2X1.1(b) at his

original sentencing, Hidalgo argues that he would have received a three-level




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decrease in his total offense level. According to Hidalgo, this three-level decrease

would have correlated to a guideline range of 292–365 months of imprisonment.

      Amendment 591 offers no help to Hidalgo because § 2X1.1 does not apply

to his sentence. It is true that Amendment 591 instructs courts to “refer” to

§ 2X1.1 (in addition to the substantive offense guideline) if the offense generally

involved a conspiracy, attempt, or solicitation. USSG, App. C, amend. 591.

However, § 2X1.1 does not apply when the attempt, solicitation, or conspiracy is

expressly covered by another offense guideline section. USSG § 2X1.1(c) (“When

an attempt, solicitation, or conspiracy is expressly covered by another offense

guideline section, apply that guideline section.”). Section 2D1.1 is an example of

such a guideline section that expressly covers both the substantive offense as well

as attempts and conspiracies. See USSG § 2X1.1, comment. (n.1) (noting that

§ 2D1.1 expressly covers attempts and conspiracies). As a result, were Hidalgo to

be resentenced, § 2X1.1 would not apply. Instead, Hidalgo’s base offense level

would remain the same because § 2D1.1 would still exclusively govern.

                                         III.

      For the reasons stated above, the district court did not abuse its discretion by

denying Hidalgo’s motion to reduce his sentence.

      AFFIRMED.




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