USA v. Andy Pierre

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12809
Non-Argument Calendar
________________________
D.C. Docket No. 9:99-cr-08091-DTKH-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDY PIERRE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 30, 2016)
Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 15-12809 Date Filed: 03/30/2016 Page: 1 of 4

-- 1 of 4 --

2
Andy Pierre, through counsel, appeals from the district court’s denial of
his pro se motion for a sentence reduction based on Amendment 782 to the
Sentencing Guidelines, pursuant to 18 U.S.C. § 3582(c)(2). On appeal, he argues
that he was entitled to a sentence reduction under Amendment 782, because his
sentence was based, at least in part, on U.S.S.G. § 2D1.1, and he challenges his
career offender designation based on the Supreme Court’s decision in Johnson v.
United States, 576 U.S. , 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015), which held
that the residual clause of the Armed Career Criminal Act was unconstitutionally
vague.
We review de novo a district court’s legal conclusions about the
Sentencing Guidelines and the scope of its authority under 18 U.S.C. § 3582(c)(2).
United States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008). Under
§ 3582(c)(2), a district court may reduce the prison sentence 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[.]” 18 U.S.C.
§ 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1). Section 3582(c)(2) does not grant
the district court jurisdiction to consider extraneous resentencing issues, including
collateral attacks on a sentence. United States v. Bravo, 203 F.3d 778, 782 (11th
Cir. 2000). Instead, collateral attacks must be brought under 28 U.S.C. § 2255. Id.
Case: 15-12809 Date Filed: 03/30/2016 Page: 2 of 4

-- 2 of 4 --

3
For a defendant to be eligible for a reduction under § 3582(c)(2), the
Sentencing Commission must have amended the guideline at issue, the amendment
must have lowered the defendant’s sentencing range, and the amendment must also
be listed in U.S.S.G. § 1B1.10(d). See 18 U.S.C. § 3582(c)(2); U.S.S.G.
§ 1B1.10(a)(1) & comment. (n.1(A)). Amendment 782 provided for a two-level
reduction in base offense levels for most drug quantities listed in U.S.S.G.
§ 2D1.1(c), and may serve, when applicable, as the basis for a sentence reduction.
See U.S.S.G. App. C, amend. 782; Id. § 1B1.10(d).
However, “[w]here a retroactively applicable guideline amendment
reduces a defendant’s base offense level, but does not alter the sentencing range
upon which his or her sentence was based, § 3582(c)(2) does not authorize a
reduction in sentence.” Moore, 541 F.3d at 1330. Thus, where a defendant’s
sentence was based on the guideline range for a career offender under U.S.S.G.
§ 4B1.1, an amendment to the base offense levels applicable to the defendant under
U.S.S.G. § 2D1.1 does not affect the guideline range, because the defendant’s base
offense level under § 2D1.1 “played no role” in the calculation of the guideline
range. Id. at 1327, 1330.
The district court did not err when it denied Pierre’s motion for a
reduction of his sentence because he was sentenced based on the career offender
guideline under U.S.S.G. § 4B1.1, rather than the drug quantity tables under
Case: 15-12809 Date Filed: 03/30/2016 Page: 3 of 4

-- 3 of 4 --

4
U.S.S.G. § 2D1.1. Therefore, he is ineligible for relief based on Amendment 782,
because the amendment did not alter his guideline range. Moore, 541 F.3d at
1327, 1330. Although Pierre now attempts to challenge his career offender
designation, he cannot challenge that determination in a § 3582(c)(2) proceeding.
Bravo, 203 F.3d at 782.
AFFIRMED.
Case: 15-12809 Date Filed: 03/30/2016 Page: 4 of 4

-- 4 of 4 --