United States v. Jorge Bonilla Mesa , 649 F. App'x 711 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13278
Non-Argument Calendar
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D.C. Docket No. 1:10-cr-20661-PCH-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE BONILLA MESA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 2, 2016)
Before HULL, JORDAN and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Jorge Bonilla Mesa is a federal prisoner serving a total 240-month sentence
for conspiring and attempting to possess with intent to distribute cocaine (Counts 1
and 2), conspiring and attempting to commit Hobbs Act robbery (Counts 3 and 4),
and carrying a short-barreled shotgun during and in relation to a crime of violence
and drug trafficking crime (Count 5). Mesa pro se appeals the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his concurrent 120-month
sentences on Counts 1 through 4. On appeal, Mesa argues that he is eligible for a
sentence reduction on these four counts based on Amendment 782 to the
Sentencing Guidelines.1 After review, we affirm. 2
Under § 3582(c)(2), a district court may reduce a defendant’s term of
imprisonment if the defendant was sentenced based on a sentencing range that has
subsequently been lowered by the Sentencing Commission. 18 U.S.C.
§ 3582(c)(2). Any reduction, however, must be consistent with the Sentencing
Commission’s policy statements. Id. A reduction is not consistent with the
Sentencing Commission’s policy statements and thus is not authorized if the
retroactive amendment does not actually lower the defendant’s applicable
guidelines range “because of the operation of another guideline or statutory
1
Mesa concedes that his § 3582(c)(2) motion based on Amendment 782 did not implicate
his mandatory, consecutive 120-month sentence on Count 5, his firearm offense, which was
imposed pursuant to 18 U.S.C. § 924(c).
2
“We review de novo a district court’s conclusions about the scope of its legal authority
under 18 U.S.C. § 3582(c)(2).” United States v. Jones, 548 F.3d 1366, 1368 (11th Cir. 2008).
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provision” such as a statutory mandatory minimum prison term. U.S.S.G.
§ 1B1.10(a)(2)(B) & cmt. n.1(A); United States v. Berry, 701 F.3d 374, 376 (11th
Cir. 2012); United States v. Mills, 613 F.3d 1070, 1077-78 (11th Cir. 2010).
Here, the district court properly denied Mesa’s § 3582(c)(2) motion because
Amendment 782 did not actually lower his applicable guidelines range. At Mesa’s
original 2010 sentencing, the district court grouped Counts 1 through 4 together
and, based on 14 kilograms of cocaine attributable to Mesa, calculated a base
offense level was 32, pursuant to U.S.S.G. § 2D1.1(c)(4) (2010). After several
adjustments, Mesa’s total offense level was 31 and his criminal history category
was I, which yielded an advisory guidelines range 108 to 135 months’
imprisonment. However, Mesa was subject to a ten-year statutory mandatory
minimum on Counts 1 and 2. See 21 U.S.C. § 841(b)(1)(A)(ii). Therefore,
pursuant to U.S.S.G. § 5G1.1(c), Mesa’s advisory guidelines range became 120 to
135 months, and the district court imposed concurrent 120-month sentences on all
four counts.
In 2014, the Sentencing Commission promulgated Amendment 782, which
reduced by two levels the base offense levels for most drug quantities in U.S.S.G.
§ 2D1.1(c). See U.S.S.G. app. C, amend. 782. After Amendment 782, the base
offense level for Mesa’s drug quantity of 14 kilograms of cocaine is 30, rather than
32. See U.S.S.G. § 2D1.1(c)(5) (2015). Holding all other sentencing
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determinations the same, Mesa’s total offense level would be 29 and his initial
guidelines range would be 87 to 108 months. See U.S.S.G. ch. 5, pt. A, Sentencing
Table. However, by operation of U.S.S.G. § 5G1.1(b) and the ten-year mandatory
minimum in 21 U.S.C. § 841(b)(1)(A)(ii), Mesa’s advisory guidelines range would
become 120 months. See U.S.S.G. § 5G1.1(b) (providing that the mandatory
minimum sentence is the guidelines sentence when it is greater than the high end
of the otherwise applicable guidelines range). Thus, while Amendment 782
lowered Mesa’s base offense level, it did not lower his advisory guidelines range.
Accordingly, the district court was not authorized under § 3582(c)(2) to reduce
Mesa’s sentence.
AFFIRMED.
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