USA v. Frantz Sterlin

Filing

Opinion issued by court as to Appellant Frantz Sterlin. 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: 15-15357

Date Filed: 10/05/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-15357
Non-Argument Calendar
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D.C. Docket No. 1:09-cr-20264-JLK-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANTZ STERLIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 5, 2016)
Before MARTIN, ANDERSON, and DUBINA, Circuit Judges.
PER CURIAM:
Franz Sterlin, a federal prisoner proceeding pro se, appeals the district
court’s denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2)

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and Amendment 782 to the sentencing guidelines. After Sterlin was convicted on
four counts of possession with intent to distribute five grams or more of cocaine
base, in violation of 21 U.S.C. § 841(a)(1), the sentencing court found that he was
a career offender, pursuant to U.S.S.G. § 4B1.1. Thus, his total offense level was
37 and his guideline range was 360 months to life imprisonment. The district court
varied downward from the guideline range and sentenced Sterlin to 192 months’
imprisonment. Sterlin now argues that because the district court did not sentence
him within the career-offender guideline range, he is therefore entitled to a reduced
sentence under Amendment 782. He requests a reduction of his sentence
equivalent to a two-point reduction in his offense level. He argues that the district
court did not declare that he was a career offender, and now the court may not do
so.
I.
We review the district court’s conclusions about the scope of its legal
authority under § 3582(c)(2) de novo. United States v. Colon, 707 F.3d 1255, 1258
(11th Cir. 2013). A district court may modify a defendant’s term of imprisonment
if the court sentenced the defendant based on a sentencing range that has
subsequently been lowered by the Sentencing Commission. 18 U.S.C. §
3582(c)(2). When the district court considers a § 3582(c)(2) motion, it must first
recalculate the guideline range under the amended guidelines. United States v.
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Bravo, 203 F.3d 778, 780 (11th Cir. 2000). When recalculating the guideline
range, the district court can only substitute the amended guideline and must keep
intact all other guidelines decisions made during the original sentencing. Id. A
defendant is eligible for a sentence reduction under § 3582(c)(2) when an
amendment listed in U.S.S.G. § 1B1.10(d) lowers the guideline range that the
sentencing court calculated prior to any departure or variance. U.S.S.G. § 1B1.10,
comment. (n. 1(A)).
Amendment 782 provides a 2-level reduction in the base offense levels for
most drug quantities listed in the Drug Quantity Table in U.S.S.G. § 2D1.1(c) and
is listed under § 1B1.10(d). U.S.S.G. App. C, amend. 782. Even so, a district
court is not authorized to reduce a defendant’s sentence under § 3582(c)(2) where a
retroactively applicable guidelines amendment reduces his base offense level but
does not alter the guideline range upon which his sentence was based. United
States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008). Specifically, when a drug
offender is sentenced under the career-offender guideline in § 4B1.1, the guideline
range upon which his sentence is based is calculated from § 4B1.1, not § 2D1.1.
United States v. Lawson, 686 F.3d 1317, 1321 (11th Cir. 2012). Because an
amendment to § 2D1.1 does not affect a career offender’s guideline range, he is
ineligible for a sentence reduction under § 3582(c)(2) based on an amendment to

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that guideline. Id. (affirming the denial of a sentence reduction under Amendment
750 to the Sentencing Guidelines).
II.
We conclude from the record that the district court did not err in determining
that Sterlin was ineligible for a sentence reduction because Amendment 782 did
not lower his applicable guideline range. Amendment 782 did not affect Sterlin’s
guideline range because the district court determined his total offense level and
guideline range under the career-offender guideline in § 4B1.1, not § 2D1.1.
Although Sterlin argues that he was not sentenced as a career offender, the district
court accepted the PSI’s career-offender determination and its guideline range
before granting Sterlin a downward variance. Therefore, because the district court
correctly concluded that Sterlin was ineligible for a sentence reduction based on
Amendment 782, we affirm its order denying Sterlin’s motion.
AFFIRMED.

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