USA v. Olgaire Francois

Filing

Opinion issued by court as to Appellant Olgaire Francois. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-14643

Date Filed: 02/03/2017

Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14643
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-20259-CMA-2

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OLGAIRE FRANCOIS,
a.k.a. T-Blanc,
a.k.a. Senor Blanco,
a.k.a. Blanco,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 3, 2017)

Case: 15-14643

Date Filed: 02/03/2017

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Before WILSON, ROSENBAUM and BLACK, Circuit Judges.
PER CURIAM:
Olgaire Francois appeals the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion to reduce his sentence based on Amendment 782 to the
Sentencing Guidelines and its denial of his motion for reconsideration of that
order. Francois argues the district court erred in denying his § 3582(c)(2) motion
based on its determination that he was ineligible for a sentence reduction. Upon
review of the record and the parties’ briefs, 1 we affirm.
I. DISCUSSION
Francois asserts the district court erred in denying his § 3582(c)(2) motion
and his request for reconsideration because his total offense level was initially 35,
resulting in a Guidelines range of 168–210 months’ imprisonment, but the district
court granted a downward variance to 135 months after reviewing the 18 U.S.C.
§ 3553(a) factors. He contends this downward variance in fact constituted a twopoint reduction of his total offense level to 33. Amendment 782, which revises the
drug quantity calculation table by decreasing most offenses by two levels, applied
to Francois’ sentence retroactively, at which point, he contends, his revised total
1

Francois’ notice of appeal challenges only the district court’s denial of his motion for
reconsideration, which we review for an abuse of discretion. United States v. Simms, 385 F.3d
1347, 1356 (11th Cir. 2004). However, it is abundantly clear that he intended to appeal the
denial of his motion to reduce his sentence, and the Government does not object. KH Outdoor,
LLC v. City of Trussville, 465 F.3d 1256, 1260 (11th Cir. 2006). Accordingly, “[w]e review de
novo the district court’s legal conclusions about the scope of its authority under § 3582(c)(2).”
United States v. Lawson, 686 F.3d 1317, 1319 (11th Cir. 2012)
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offense level was further reduced to 31. See U.S.S.G. App. C, amends. 782 & 788.
As such, his Guidelines range would have been 108–135 months. While the
district court was not required to further reduce his sentence to 108 months as he
requested, Francois contends the court erred when it held it had no authority to
consider a reduction.
Francois’ argument fails because there is no support for his contention that
the district court’s initial variance constituted a reduction in his offense level under
the Guidelines. See U.S.S.G. § 1B1.10, cmt. 1(A) (“Eligibility for consideration
under 18 U.S.C. 3582(c)(2) is triggered only by an amendment listed in subsection
(d) that lowers the applicable guideline range (i.e., the guideline range that
corresponds to the offense level and criminal history category determined pursuant
to 1B1.1(a), which is determined before consideration of . . . any variance.)”)
(emphasis added). Thus, after taking into account the effect of Amendment 782,
Francois’ total offense level was not 31 but 33, corresponding to a Guidelines
range of 135–168 months.
Section 3582(c)(2) states a court may grant a sentence reduction when an
amendment to the Guidelines has been made retroactive, but only “if such a
reduction is consistent with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). We have previously held the policy
statement contained in U.S.S.G. § 1B1.10 is binding on district courts and bars
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them from reducing a sentence below the lowest term of imprisonment applicable
under the amendment. See United States v. Melvin, 556 F.3d 1190, 1191–1193
(11th Cir. 2009); U.S.S.G. § 1B1.10(b)(2)(A) (“[T]he court shall not reduce the
defendant’s term of imprisonment under 18 U.S.C. 3582(c)(2) and this policy
statement to a term that is less than the minimum of the amended guideline
range . . . .”). The district court was not permitted under § 3582(c)(2) to grant an
additional reduction because Francois’ initial varied sentence of 135 months was
already at the bottom of the range of 135–168 months applicable under
Amendment 782. See Melvin, 556 F.3d at 1193–1194 (“The district court was only
permitted under § 3582(c)(2) to reduce Melvin’s sentences consistent with the
applicable policy statements of the Sentencing Commission. The applicable policy
statement prohibits the district court’s reduction of Melvin’s sentences to a term of
imprisonment of less than 84 months [the low end of the amended Guideline
range].”).
II. CONCLUSION
Accordingly, the district court did not err in finding it had no authority to
further reduce Francois’ sentence.2
AFFIRMED.

2

Because we hold the district court did not err in denying Francois’ motion for a
reduction of his sentence, we also hold it did not abuse its discretion in denying his motion for
reconsideration.
4