Eleventh Circuit Clarifies that Non-Retroactive Amendment 709 Cannot Be Used to Achieve “Zero-Point Offender” Relief Under Retroactive Amendment 821

Introduction

United States v. Lawrence Lombardi, No. 24-11376 (11th Cir. Aug. 7, 2025), is the first published—or in this instance, “non-published but precedentially persuasive”—opinion from the Eleventh Circuit to address the interplay between (1) Amendment 821’s zero-point offender reduction (made retroactive by Amendment 825) and (2) prior non-retroactive Guideline amendments, specifically Amendment 709. Defendant-appellant Lawrence Lombardi sought a sentence reduction under 18 U.S.C. § 3582(c)(2), arguing that his single criminal history point—stemming from a reckless-driving conviction—should be vacated under Amendment 709, thereby allowing him to qualify as a zero-point offender under Amendment 821. The district court rejected the motion and a subsequent motion for reconsideration; the Eleventh Circuit affirmed.

The decision squarely addresses two key issues:

Whether a defendant may invoke a non-retroactive amendment (Amendment 709) indirectly, via § 3582(c)(2), to eliminate criminal history points and thus unlock a retroactive benefit under Amendment 821;
Whether the district court abused its discretion in declining to grant a reduction even assuming eligibility.

Below is a detailed commentary on the judgment.

Summary of the Judgment

The Eleventh Circuit, in a per curiam opinion, affirmed the district court’s denial of Lombardi’s § 3582(c)(2) motion and his motion for reconsideration:

Eligibility Holding: Lombardi was not eligible for the zero-point offender reduction because he still possessed one criminal-history point. Amendment 709— which otherwise might have removed that point—has never been made retroactive and therefore cannot be applied in a § 3582(c)(2) proceeding.
Alternative Discretionary Holding: Even if Lombardi were eligible, the district court would have denied relief under the § 3553(a) factors, relying on its extensive reasoning at the 2020 resentencing (648-month total sentence for racially motivated pipe-bombings on a university campus).
Standard of Review: The panel reviewed the legal eligibility question de novo; it reviewed Lombardi’s newly raised Amendment 709 argument only for plain error, and the ultimate denial of relief for abuse of discretion. No error, plain or otherwise, was found.

Analysis

1. Precedents Cited

Dillon v. United States, 560 U.S. 817 (2010) – Established the two-step procedure for § 3582(c)(2) motions: eligibility recalculation, then discretionary evaluation.
United States v. Bravo, 203 F.3d 778 (11th Cir. 2000) – Limits § 3582(c)(2) proceedings to changes caused solely by the retroactive amendment; other Guideline determinations remain intact.
United States v. Lawson, 686 F.3d 1317 (11th Cir. 2012) – De novo review of eligibility questions.
United States v. Caraballo-Martinez, 866 F.3d 1233 (11th Cir. 2017) – Abuse-of-discretion standard for granting or denying reductions once eligibility exists.
United States v. Smith, 568 F.3d 923 (11th Cir. 2009) & United States v. Eggersdorf, 126 F.3d 1318 (11th Cir. 1997) – District court need not write extensively if record shows consideration of § 3553(a).
United States v. Olano, 507 U.S. 725 (1993) – Framework for plain-error review.
Other supportive citations: Colon, Llewlyn, and Eleventh Circuit’s prior unpublished decisions in Lombardi’s own litigation history (2022 WL 854499).

2. Legal Reasoning

a. Step One – Eligibility

The court’s analysis followed the Dillon framework:

Identify the retroactive amendment. Amendment 821 (specifically § 4C1.1) is retroactive because Amendment 825 declared it so in § 1B1.10(d).
Apply the amendment to the existing record only. Under Bravo, no other Guidelines decisions may be reopened.
Determine zero-point status. Lombardi still had one criminal history point. Because § 4C1.1(a)(1) demands “no criminal history points,” he fails the first criterion.
Inapplicability of Amendment 709. Lombardi’s attempt to leverage Amendment 709 is foreclosed; § 1B1.10(d) does not list Amendment 709 as retroactive. Even if it were listed, § 3582(c)(2) requires that the sentence be “based on a guideline range that has been subsequently lowered” by that amendment. Lombardi’s 2020 sentence was not based on the post-2007 calculation of reckless-driving points.

b. Step Two – Discretion

Assuming arguendo eligibility, the panel approved the district court’s alternative ruling:

The 2020 record—reciting the racial motive, multiple pipe bombs, and community risk—remained compelling under § 3553(a)(1)–(2).
Deterrence, protection of the public, and retribution were still paramount; a lower sentence would not have been “sufficient.”
The same presiding judge, familiar with the facts and the defendant, needed only a brief written reference to incorporate earlier findings (Eggersdorf).

3. Impact of the Judgment

Although unpublished, Eleventh Circuit practitioners know that “non-published” opinions can be cited for persuasive value under 11th Cir. R. 36-2. The Lombardi decision is therefore likely to shape district-level § 3582 practice in three ways:

Barrier to Indirect Retroactivity. Defendants cannot piggy-back a non-retroactive amendment (709) onto a retroactive one (821) to mold the criminal-history calculus.
Reaffirmation of the Bravo Principle. Sentencing judges faced with multiprong § 3582 motions can summarily reject any request that would alter other guideline determinations.
§ 3553(a) Deference. The panel reiterated that a concise incorporation of earlier reasoning satisfies appellate review, saving judicial resources.

Complex Concepts Simplified

18 U.S.C. § 3582(c)(2): A statutory “safety valve” that lets courts slightly tweak sentences when (and only when) the Sentencing Commission makes a relevant amendment retroactive.
Retroactivity: An amendment is retroactive only if the Sentencing Commission lists it in Guideline § 1B1.10(d). Without that listing, the amendment is legally invisible in § 3582 proceedings.
Zero-Point Offender (Guideline § 4C1.1): A brand-new (2023) reduction of 2 offense levels for defendants who literally have zero criminal-history points and meet nine other safety criteria.
Amendment 709: A 2007 change that relaxed how minor traffic offenses count in criminal history. Useful for defendants sentenced after 2007, but not retroactive.
Amendments 821 & 825: Amendment 821 introduced the zero-point adjustment; Amendment 825 made it retroactive as of February 1, 2024.
Plain-Error Review: On appeal, a new argument fails unless the error is obvious and affects substantial rights—an intentionally high bar.

Conclusion

United States v. Lombardi crystalizes an important guardrail on post-sentencing relief: defendants cannot retrofit their criminal-history scores with non-retroactive amendments to capture newer retroactive benefits. The Eleventh Circuit’s adherence to the Bravo principle underscores the limited, mechanical nature of § 3582(c)(2) proceedings and solidifies district courts’ broad discretion—even at step two—to deny reductions in egregious cases. Future litigants seeking zero-point offender status must confront Lombardi’s holding: unless every criminal-history point already evaporated through retroactive authority, Amendment 821 offers no relief.