United States v. Tray Williams ( 2017 )


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  •      Case: 16-50677   Document: 00514118603     Page: 1   Date Filed: 08/16/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 16-50677                         FILED
    August 16, 2017
    UNITED STATES OF AMERICA,                                        Lyle W. Cayce
    Clerk
    Plaintiff - Appellant
    v.
    MELISSA QUINTANILLA,
    Defendant - Appellee
    ___________________________________
    cons/w 16-50682
    UNITED STATES OF AMERICA,
    Plaintiff - Appellant
    v.
    DUSTIN RAY NICHOLS, also known as Dustin Nichols
    Defendant - Appellee
    ___________________________________
    cons/w 16-50683
    UNITED STATES OF AMERICA,
    Plaintiff - Appellant
    v.
    JANE CERVANTEZ, also known as Jane Cervantes
    Defendant - Appellee
    ___________________________________
    Case: 16-50677   Document: 00514118603    Page: 2   Date Filed: 08/16/2017
    No. 16-50677 Cons w/ Nos. 16-50682, 16-50683, 16-50687, 16-50688,
    16-50689, 16-50690, 16-50691, 16-50694, 16-50700, 16-50704, 16-50705,
    16-50706, 16-50707, 16-50709, 16-50715, 16-50716
    cons/w 16-50687
    UNITED STATES OF AMERICA,
    Plaintiff - Appellant
    v.
    JUSTIN ANDERSON,
    Defendant - Appellee
    ___________________________________
    cons/w 16-50688
    UNITED STATES OF AMERICA,
    Plaintiff - Appellant
    v.
    MARTI GAIL MCPHERSON,
    Defendant - Appellee
    ___________________________________
    cons/w 16-50689
    UNITED STATES OF AMERICA,
    Plaintiff - Appellant Cross-Appellee
    v.
    MICHAEL SCOTT COOKSEY,
    Defendant - Appellee Cross-Appellant
    ___________________________________
    2
    Case: 16-50677   Document: 00514118603   Page: 3   Date Filed: 08/16/2017
    No. 16-50677 Cons w/ Nos. 16-50682, 16-50683, 16-50687, 16-50688,
    16-50689, 16-50690, 16-50691, 16-50694, 16-50700, 16-50704, 16-50705,
    16-50706, 16-50707, 16-50709, 16-50715, 16-50716
    cons/w 16-50690
    UNITED STATES OF AMERICA,
    Plaintiff - Appellant
    v.
    TAVICHE MARQUISE GRIMES, also known as Tavichie Mequise Grimes,
    Defendant - Appellee
    ___________________________________
    cons/w 16-50691
    UNITED STATES OF AMERICA,
    Plaintiff - Appellant
    v.
    JAMES WALTER LEE,
    Defendant - Appellee
    ___________________________________
    cons/w 16-50694
    UNITED STATES OF AMERICA,
    Plaintiff - Appellant
    v.
    TRAY WILLIAMS,
    Defendant - Appellee
    ___________________________________
    3
    Case: 16-50677   Document: 00514118603   Page: 4   Date Filed: 08/16/2017
    No. 16-50677 Cons w/ Nos. 16-50682, 16-50683, 16-50687, 16-50688,
    16-50689, 16-50690, 16-50691, 16-50694, 16-50700, 16-50704, 16-50705,
    16-50706, 16-50707, 16-50709, 16-50715, 16-50716
    cons/w 16-50700
    UNITED STATES OF AMERICA,
    Plaintiff - Appellant
    v.
    ELIZABETH ANN PARADA,
    Defendant - Appellee
    ___________________________________
    cons/w 16-50704
    UNITED STATES OF AMERICA,
    Plaintiff - Appellant
    v.
    DODIONNE GAY WATSON,
    Defendant - Appellee
    ___________________________________
    cons/w 16-50705
    UNITED STATES OF AMERICA,
    Plaintiff - Appellant
    v.
    KENNETH MORRISON,
    Defendant - Appellee
    ___________________________________
    4
    Case: 16-50677   Document: 00514118603   Page: 5   Date Filed: 08/16/2017
    No. 16-50677 Cons w/ Nos. 16-50682, 16-50683, 16-50687, 16-50688,
    16-50689, 16-50690, 16-50691, 16-50694, 16-50700, 16-50704, 16-50705,
    16-50706, 16-50707, 16-50709, 16-50715, 16-50716
    cons/w 16-50706
    UNITED STATES OF AMERICA,
    Plaintiff - Appellant
    v.
    LEE EDWARD WILLIAMS,
    Defendant - Appellee
    ___________________________________
    cons/w 16-50707
    UNITED STATES OF AMERICA,
    Plaintiff - Appellant
    v.
    JOSE ARON SOTELO,
    Defendant - Appellee
    ___________________________________
    cons/w 16-50709
    UNITED STATES OF AMERICA,
    Plaintiff - Appellant
    v.
    LATOYA LATRICE GOLDEN, also known as Toya,
    Defendant - Appellee
    ___________________________________
    5
    Case: 16-50677   Document: 00514118603   Page: 6   Date Filed: 08/16/2017
    No. 16-50677 Cons w/ Nos. 16-50682, 16-50683, 16-50687, 16-50688,
    16-50689, 16-50690, 16-50691, 16-50694, 16-50700, 16-50704, 16-50705,
    16-50706, 16-50707, 16-50709, 16-50715, 16-50716
    cons/w 16-50715
    UNITED STATES OF AMERICA,
    Plaintiff - Appellant
    v.
    DAVID WAYNE FRAZIER, JR., also known as David Frazier, Jr.,
    Defendant - Appellee
    ___________________________________
    cons/w 16-50716
    UNITED STATES OF AMERICA,
    Plaintiff - Appellant
    v.
    CHARLES EARL THOMAS,
    Defendant - Appellee
    Appeals from the United States District Court
    for the Western District of Texas
    Before DAVIS, GRAVES, and COSTA, Circuit Judges.
    PER CURIAM:
    Before the Court are seventeen consolidated criminal appeals presenting
    essentially the same question of law: whether each defendant is entitled to a
    two-level reduction to offense level under Amendment 782 to the United States
    6
    Case: 16-50677   Document: 00514118603       Page: 7   Date Filed: 08/16/2017
    No. 16-50677 Cons w/ Nos. 16-50682, 16-50683, 16-50687, 16-50688,
    16-50689, 16-50690, 16-50691, 16-50694, 16-50700, 16-50704, 16-50705,
    16-50706, 16-50707, 16-50709, 16-50715, 16-50716
    Sentencing Guidelines, which permits such a reduction for sentences based on
    the drug quantity under U.S.S.G. § 2D1.1, when the original sentence in each
    case was calculated starting from the higher guideline range for career
    offenders under U.S.S.G. § 4B1.1. As explained further below, 18 U.S.C.
    § 3582(c)(2) authorizes a district court to modify a sentence “in the case of a
    defendant who has been sentenced to a term of imprisonment based on a
    sentencing range that has subsequently been lowered by the Sentencing
    Commission . . . .” Because we hold that the sentences in these appeals were
    not “based on” § 2D1.1’s drug quantity range but rather on § 4B1.1’s higher
    career offender guideline range, the district court was without authority as a
    matter of law to modify the sentences, and the judgments of the district court
    must be REVERSED.
    I.     Background
    Not only do all seventeen appeals present the same issue of law, 1 but the
    relevant facts and applicable law are the same in all material respects. The
    relevant facts are as follows: Each defendant was convicted of a drug crime,
    which resulted in a guideline range under § 2D1.1 based on the drug quantity.
    Each defendant also qualified as a career offender, resulting in a guideline
    range under § 4B1.1 based on that status. In each case, the § 4B1.1 career
    offender guideline range was higher than the § 2D1.1 drug quantity range.
    Under § 4B1.1(b), “if the offense level for a career offender from the table
    in this [career offender] subsection is greater than the offense level otherwise
    applicable, the offense level from the table in this subsection shall apply.”
    1 One of them, United States v. Cooksey, No. 16-50689, also presents one small
    additional issue, discussed at the end of this opinion.
    7
    Case: 16-50677      Document: 00514118603        Page: 8    Date Filed: 08/16/2017
    No. 16-50677 Cons w/ Nos. 16-50682, 16-50683, 16-50687, 16-50688,
    16-50689, 16-50690, 16-50691, 16-50694, 16-50700, 16-50704, 16-50705,
    16-50706, 16-50707, 16-50709, 16-50715, 16-50716
    Thus, the higher § 4B1.1 guideline range was the required starting range for
    each defendant. The district court at each original sentencing in fact applied
    the higher § 4B1.1 guideline range. From that range, the district court applied
    various reductions that are not at issue in these cases. The final sentence was
    typically somewhere between the starting § 4B1.1 range and the lower § 2D1.1
    range, though in some cases the final sentence, after all appropriate
    reductions, was within or even lower than the original § 2D1.1 range. 2 Of
    course, if the court had started at the § 2D1.1 range and applied all of those
    reductions, the sentence would have been lower still.
    After the original sentencings, the Sentencing Commission enacted
    Amendment 782, effective November 1, 2014 and retroactive to earlier
    sentences, which amended § 2D1.1 to allow a two-level reduction to offense
    level based on the drug quantity. 3 The amendment affects § 2D1.1 and a few
    other minor sections tied to § 2D1.1, but it does not change § 4B1.1 in any way.
    In Amendment 782’s “Reason for Amendment” section, the Sentencing
    Commission stated that “existing statutory enhancements, such as those
    available under 18 U.S.C. § 924(c), and guideline enhancements for offenders
    who possess firearms, use violence, have an aggravating role in the offense, or
    are repeat or career offenders, ensure that the most dangerous or serious
    offenders will continue to receive appropriately severe sentences.” 4
    2  In United States v. Grimes, No. 16-50690, the defendant’s § 2D1.1 range was 130-
    162 months, and the § 4B1.1 range was 262-327 months, but the final sentence after
    substantial reductions was 151 months, within the original § 2D1.1 range. In United States
    v. Parada, No. 16-50700, United States v. Morrison, No. 16-50705, United States v. Sotelo,
    No. 16-50707, and United States v. Golden, No. 15-50709, the final sentence, after all
    reductions, was lower than the § 2D1.1 range.
    3 U.S.S.G. App. C, Amendment 782 (2014).
    4 
    Id. (emphasis added).
    8
    Case: 16-50677         Document: 00514118603      Page: 9   Date Filed: 08/16/2017
    No. 16-50677 Cons w/ Nos. 16-50682, 16-50683, 16-50687, 16-50688,
    16-50689, 16-50690, 16-50691, 16-50694, 16-50700, 16-50704, 16-50705,
    16-50706, 16-50707, 16-50709, 16-50715, 16-50716
    Under 18 U.S.C. § 3582(c)(2), a district court has authority to modify a
    sentence “in the case of a defendant who has been sentenced to a term of
    imprisonment based on a sentencing range that has subsequently been lowered
    by the Sentencing Commission . . . .” Under U.S.S.G. § 1B1.10(a)(1):
    In a case in which a defendant is serving a term of imprisonment,
    and the guideline range applicable to that defendant has
    subsequently been lowered as a result of an amendment to the
    Guidelines Manual listed in subsection (d) below [NB: subsection
    (d) includes Amendment 782], the court may reduce the
    defendant’s term of imprisonment as provided by 18 U.S.C.
    3582(c)(2). As required by 18 U.S.C. 3582(c)(2), any such reduction
    in the defendant’s term of imprisonment shall be consistent with
    this policy statement. 5
    Each of the defendants applied for and received a two-level reduction
    under Amendment 782. In its virtually identical orders granting the
    defendants’ motions to reduce the sentence, the district court:
    [found] that Movant [was] eligible for a reduction of his sentence
    under 18 U.S.C. § 3582(c)(2) because his original sentence was
    “based on” the amended guideline § 2D1.1 . . . . See § 3582(c)(2); see
    also [Freeman v. United States, 
    131 S. Ct. 2685
    , 2695 (2011)]
    (allowing a § 3582(c)(2) reduction with a Rule 11(c)(1)(C) plea
    agreement if agreed sentence was based on the guidelines). . . .
    In the instant case, Movant’s sentence was “based on” the drug
    guideline range. . . . Just like when the parties to an 11(c)(1)(C)
    binding plea agreement may choose a downward departure tied to
    a drug guideline range, a judge may depart to a sentence otherwise
    tied to the initial drug guideline range. The sentence would still be
    “based on” the drug guideline range under Freeman.
    The district court also cited United States v. Jackson, 
    678 F.3d 442
    , 445
    (6th Cir. 2012), for the proposition that a sentence is “based on” § 2D1.1 if the
    5   U.S.S.G. § 1B1.10(a)(1) (emphasis added).
    9
    Case: 16-50677    Document: 00514118603        Page: 10     Date Filed: 08/16/2017
    No. 16-50677 Cons w/ Nos. 16-50682, 16-50683, 16-50687, 16-50688,
    16-50689, 16-50690, 16-50691, 16-50694, 16-50700, 16-50704, 16-50705,
    16-50706, 16-50707, 16-50709, 16-50715, 16-50716
    district court clearly considered the lower drug quantity guidelines in
    downwardly departing from a higher applicable guideline range. Using this
    definition, the district court not only found that each defendant’s sentence was
    “based on” the § 2D1.1 drug quantity range, but that each defendant was in
    fact entitled to a two-level reduction.
    The government timely appealed each case on the ground that each
    defendant’s original sentence was based on the career offender guideline range
    in § 4B1.1, not the lower drug quantity guideline range in § 2D1.1.
    II.      Jurisdiction and Standard of Review
    We have appellate jurisdiction to review the district court’s sentence
    modification under 18 U.S.C. § 3731. “[W]e review the decision whether to
    reduce a sentence under § 3582(c)(2) for abuse of discretion, its interpretation
    of the guidelines de novo, and its findings of fact for clear error.” 6 “‘A district
    court abuses its discretion if it bases its decision on an error of law or a clearly
    erroneous assessment of the evidence.’” 7
    III.     Analysis
    The crux of the issue is whether each defendant’s original sentence was
    “based on” the drug quantity guideline range under § 2D1.1 or “based on” the
    career offender guideline range under § 4B1.1. Stated differently, the question
    under § 1B1.10(a)(1) in each case is whether the “guideline range applicable to
    that defendant has subsequently been lowered.” Amendment 782 lowered only
    the § 2D1.1 drug quantity guideline range, so if the § 2D1.1 guideline range
    United States v. Evans, 
    587 F.3d 667
    , 672 (5th Cir. 2009) (citations omitted).
    6
    United States v. Henderson, 
    636 F.3d 713
    , 717 (5th Cir. 2011) (quoting United States
    7
    v. Smith, 
    417 F.3d 483
    , 486–87 (5th Cir. 2005)).
    10
    Case: 16-50677       Document: 00514118603          Page: 11     Date Filed: 08/16/2017
    No. 16-50677 Cons w/ Nos. 16-50682, 16-50683, 16-50687, 16-50688,
    16-50689, 16-50690, 16-50691, 16-50694, 16-50700, 16-50704, 16-50705,
    16-50706, 16-50707, 16-50709, 16-50715, 16-50716
    was not “applicable to [a] defendant,” then that defendant cannot receive a
    reduction under § 1B1.10 or § 3582(c)(2).
    The government argues that the district court based its decision on
    inapposite legal authorities. Specifically, it argues that the Supreme Court’s
    decision in Freeman is irrelevant because Freeman concerned a plea agreement
    under Federal Rule of Criminal Procedure 11(c)(1)(C), which is not at issue in
    any of these sentences. The government also correctly observes that the Fifth
    Circuit’s decision in 
    Henderson, supra
    , and the Sixth Circuit’s decision in
    
    Jackson, supra
    , cited by the district court, are factually inapposite to the cases
    before us and do not provide authority for finding that the defendants’ original
    sentences here were “based on” § 2D1.1’s drug quantity guideline range when
    they were subject to a higher § 4B1.1 career offender guideline range.
    Furthermore, the government points out that the Fifth Circuit has
    already held, in United States v. Valdez, 615 F. App’x 191, 192 (5th Cir. 2015),
    that a defendant may not obtain a reduction under Amendment 782 if his or
    her sentence was calculated from the higher career offender guideline range
    under § 4B1.1. The government notes that the unpublished opinion in Valdez
    is consistent with the Fifth Circuit’s treatment of a previous amendment
    concerning the crack cocaine guidelines in United States v. Anderson, 
    591 F.3d 789
    (5th Cir. 2009). The Anderson rule is consistent with the result reached by
    other circuits on both Amendment 782 8 and similar previous amendments. 9
    8 See United States v. Thomas, 
    775 F.3d 982
    , 983 (8th Cir. 2014) (per curiam), United
    States v. Hall, 628 Fed. App’x 681, 683 (11th Cir. 2016) (unpublished), United States v. Banyi,
    637 Fed. App’x 532 (10th Cir. 2016) (unpublished), United States v. Fritz, 621 Fed. App’x 196
    (4th Cir. 2015) (per curiam), United States v. Steel, 609 Fed. App’x 851, 856 (6th Cir. 2015)
    (unpublished).
    9 See United States v. Caraballo, 
    552 F.3d 6
    , 10 (1st Cir. 2008); United States v. Mock,
    
    612 F.3d 133
    , 138 (2d Cir. 2010); United States v. Mateo, 
    560 F.3d 152
    , 154-55 (3d Cir. 2009);
    11
    Case: 16-50677       Document: 00514118603          Page: 12     Date Filed: 08/16/2017
    No. 16-50677 Cons w/ Nos. 16-50682, 16-50683, 16-50687, 16-50688,
    16-50689, 16-50690, 16-50691, 16-50694, 16-50700, 16-50704, 16-50705,
    16-50706, 16-50707, 16-50709, 16-50715, 16-50716
    Indeed, there is even more authority than the government cited. At least four
    more unpublished Fifth Circuit opinions have concluded that a defendant is
    not entitled to a sentence reduction under Amendment 782 if that defendant
    was sentenced as a career offender under § 4B1.1. 10 There are no cases
    reaching the district court’s contrary result.
    Indeed, the Fifth Circuit strengthened the Anderson rule even further in
    United States v. Banks, 
    770 F.3d 346
    (5th Cir. 2014), making it clear now that
    to determine under § 1B1.10 what is the “guideline range applicable to that
    defendant,” we look only to the highest guideline range applicable at the time
    he or she seeks resentencing, even if another range was higher at the time of
    the original sentencing.
    In Banks, the defendant’s drug quantity guideline range under § 2D1.1
    (38/VI) was higher than his career offender guideline range under § 4B1.1
    United States v. Munn, 
    595 F.3d 183
    , 187 (4th Cir. 2010); United States v. Webb, 
    760 F.3d 513
    , 519 (6th Cir. 2014); United States v. Forman, 
    553 F.3d 585
    , 589 (7th Cir. 2009); United
    States v. Tingle, 
    524 F.3d 839
    (8th Cir. 2008); United States v. Wesson, 
    583 F.3d 728
    , 731 (9th
    Cir. 2009); United States v. Sharkey, 
    543 F.3d 1236
    , 1239 (10th Cir. 2008); United States v.
    Moore, 
    541 F.3d 1323
    , 1327-30 (11th Cir. 2008); and United States v. Berry, 
    618 F.3d 13
    , 17-
    18 (D.C. Cir. 2010).
    10 See United States v. Estrada, 672 F. App’x 476, 477 (5th Cir. 2017) (“The district
    court correctly determined that Estrada was not eligible for relief under § 3582(c)(2) because
    he was sentenced under the career offender provision in U.S.S.G. § 4B1.1, and Amendment
    782 to § 2D1.1(c) did not have the effect of lowering his offense level or guidelines range.”),
    United States v. Ruiz, 669 F. App’x 222 (5th Cir. 2016) (“The record confirms that Ruiz was
    not eligible for a § 3582(c)(2) sentence reduction under Amendment 782 because, as a career
    offender pursuant to § 4B1.1, he was not sentenced based on a guidelines range that was
    subsequently lowered by Amendment 782.” (citing 
    Anderson, supra
    )), United States v.
    Saldivar, 633 F. App’x 242 (5th Cir. 2016) (“The record reflects that Saldivar was not eligible
    for a § 3582(c)(2) sentence reduction under Amendment 782 because, as a career offender
    pursuant to U.S.S.G. § 4B1.1, she was not sentenced based on a guidelines range that was
    subsequently lowered by the Sentencing Commission.”), and United States v. Yett, 669 F.
    App’x 273 (5th Cir. 2016) (“Thus, the record confirms that Yett was not eligible for a
    § 3582(c)(2) sentence reduction under Amendment 782 because, as he was sentenced as a
    career offender pursuant to § 4B1.1, his sentence is not based on a guidelines range that was
    subsequently lowered by Amendment 782.”).
    12
    Case: 16-50677       Document: 00514118603         Page: 13     Date Filed: 08/16/2017
    No. 16-50677 Cons w/ Nos. 16-50682, 16-50683, 16-50687, 16-50688,
    16-50689, 16-50690, 16-50691, 16-50694, 16-50700, 16-50704, 16-50705,
    16-50706, 16-50707, 16-50709, 16-50715, 16-50716
    (37/VI), so he was originally sentenced under § 2D1.1. 11 A few years later, in
    2008, he sought a two-level reduction based on the crack cocaine guidelines
    amendments under § 2D1.1. 12 The district court granted the reduction under
    § 2D1.1, but because his § 2D1.1 range was now lower than his § 4B1.1 range,
    the court recalculated his sentence starting with the § 4B1.1 range as his base
    guideline range, still in effect giving him a one-level reduction. 13
    The defendant later sought another reduction under Amendment 750,
    which had once again changed the drug quantity calculation under § 2D1.1,
    but the Fifth Circuit rejected the reduction on the ground that the sentence he
    was currently serving, i.e., the one in effect after the 2008 resentencing, was
    not “based on” § 2D1.1 but was “based on” § 4B1.1—even though the
    defendant’s original sentence had been based on the then-higher § 2D1.1 drug
    quantity guideline range. 14 A recent unpublished Fifth Circuit opinion applied
    the Banks rule to preclude an Amendment 782 reduction under similar facts. 15
    The consolidated appeals here are far simpler. There is no question that
    the career offender guideline range under § 4B1.1 was higher than the drug
    quantity guideline range under § 2D1.1, so under the Anderson/Banks rule, we
    must conclude that all 17 sentences were “based on” § 4B1.1 and not on § 2D1.1,
    i.e., that under § 1B1.10(a)(1) the “guideline range applicable to that
    
    11 770 F.3d at 347
    .
    12 
    Id. at 347-48.
           13 
    Id. 14 Id.
    at 348-49.
    15 See United States v. Jackson, 667 F. App’x 869 (5th Cir. 2016) (“Nevertheless, that
    Jackson’s offense level has been reduced, alone, does not entitle him to a sentence reduction
    under § 3582(c)(2). Although Amendment 782 would reduce Jackson’s § 2D1.1 offense level,
    the court’s determining it would use Jackson’s career-offender offense level of 34, under §
    4B1.1(b), because it is higher than that produced by § 2D1.1 following the amendment, was
    proper.” (citation to Banks omitted)).
    13
    Case: 16-50677    Document: 00514118603     Page: 14   Date Filed: 08/16/2017
    No. 16-50677 Cons w/ Nos. 16-50682, 16-50683, 16-50687, 16-50688,
    16-50689, 16-50690, 16-50691, 16-50694, 16-50700, 16-50704, 16-50705,
    16-50706, 16-50707, 16-50709, 16-50715, 16-50716
    defendant” was the career offender range under § 4B1.1. Because Amendment
    782 did not lower the guideline range under § 4B1.1, none of the defendants is
    entitled to a sentence reduction under § 1B1.10(a)(1) or § 3582(c)(2).
    Consequently, the district court lacked the authority as a matter of law to
    modify the defendants’ sentences under § 3582(c)(2), and it therefore abused
    its discretion by granting the reductions.
    For their part, the defendants attempt to sidestep the outcome required
    by the above cases by claiming Congress intended sentence reductions to be
    broader under § 3582(c)(2) than the Sentencing Commission suggested under
    § 1B1.10(a)(1), i.e., that § 3582(c)(2)’s language (“based on a sentencing range
    that has subsequently been lowered by the Sentencing Commission”) is
    broader than § 1B1.10(a)(1)’s language (“guideline range applicable to that
    defendant has subsequently been lowered as a result of an amendment to the
    Guidelines Manual”). The defendants argue that § 3582(c)(2)’s use of “based
    on” is broad enough to include the district court’s reasoning that a sentence is
    “based on” § 2D1.1 even if the § 2D1.1 drug quantity guideline range was lower
    than the § 4B1.1 career offender guideline range. This argument is foreclosed
    by the Anderson/Banks rule, however.
    The only remaining question is the cross-appeal of defendant Michael
    Scott Cooksey in United States v. Cooksey, No. 16-50689. Cooksey pleaded
    guilty to two counts: (1) conspiring to possess five grams or more of
    methamphetamine with the intent to distribute it, and (2) possessing and
    concealing counterfeit U.S. currency. His offense level was calculated by
    breaking the counts down into two separate groups: the drug count and the
    counterfeit-obligations count. Because of the grouping rules, § 2D1.1’s drug
    quantity range provided the base offense level for both counts. The drug count
    14
    Case: 16-50677   Document: 00514118603   Page: 15   Date Filed: 08/16/2017
    No. 16-50677 Cons w/ Nos. 16-50682, 16-50683, 16-50687, 16-50688,
    16-50689, 16-50690, 16-50691, 16-50694, 16-50700, 16-50704, 16-50705,
    16-50706, 16-50707, 16-50709, 16-50715, 16-50716
    resulted in an offense level of 26, while the counterfeit-obligations count,
    resulting in an offense level of 9, was disregarded. However, these were
    dwarfed by the career offender guideline range under § 4B1.1, which
    established a base offense level of 34.
    The district court reduced Cooksey’s drug count sentence as it did with
    all the other defendants, but it did not reduce his sentence on the counterfeit-
    obligations count and did not explain why. Cooksey has filed a cross-appeal
    arguing that he is entitled to a reduction on his counterfeit-obligations
    sentence under § 2D1.1 as well. Cooksey is not entitled to relief on his cross-
    claim for the same reason his sentence reduction should be reversed under the
    above analysis. Cooksey’s sentence was “based on” his career offender status
    under § 4B1.1, so he was not entitled to a reduction on either count under
    Amendment 782.
    IV.     Conclusion
    The district court’s judgments in all seventeen consolidated cases are
    REVERSED, and the sentences in effect before the district court’s reduction
    are hereby reinstated. As a matter of law, the district court was without
    authority to modify any of the sentences under Amendment 782.
    15