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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-11401
Non-Argument Calendar
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D.C. Docket No. 3:05-cr-00371-HES-MCR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRIAN LEON GRIER,
a.k.a. Blade
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(September 19, 2013)
Before DUBINA, MARCUS and MARTIN, Circuit Judges.
PER CURIAM:
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Appellant Brian Leon Grier, a federal prisoner, appeals from the district
court’s denial of his motion to reduce his sentence, filed pursuant to 18 U.S.C.
§ 3582(c)(2), based on the Fair Sentencing Act (“FSA”) as well as Amendment
750 to the Sentencing Guidelines. In 2006, Grier pleaded guilty, without the
benefit of a written plea agreement, to distribution of cocaine base, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count One); possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count
Two); and distribution of five grams or more of cocaine base, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(B) (Count Three). Count Three carried a statutory
mandatory minimum penalty of five years’ imprisonment. Count Two also carried
a five-year minimum prison sentence, to run consecutively to any other sentence
imposed. The district court sentenced Grier to a total of 130 months’
imprisonment as follows: as to Counts One and Three, 70 months’ imprisonment
each, to run concurrently with one another; and as to Count Two, 60 months’
imprisonment, to run consecutively to the sentence imposed for Counts One and
Three.
In 2008, Grier filed a motion to reduce his sentence under § 3582(c)(2)
based on Amendment 706 to the Sentencing Guidelines. The district court
reduced, by 10 months, Grier’s sentence as to Counts One and Three, which
resulted in 60 months’ imprisonment, the statutory minimum for Count Three.
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The district court denied Grier’s second § 3582(c)(2) motion to reduce his
sentence based on Amendment 750 and the FSA, and it is the denial of that motion
from which Grier now appeals. On appeal, Grier argues that (1) the FSA, in
conjunction with Amendment 750, should be applied retroactively to reduce his
sentence, and (2) his original sentence was “based on” a sentencing range that was
subsequently lowered by the Sentencing Commission (his previous sentence
reduction notwithstanding).
We review de novo a district court’s legal conclusions about the Sentencing
Guidelines and the scope of its authority under § 3582(c)(2). United States v.
Liberse, 688 F.3d 1198, 1200 n.1 (11th Cir. 2012). A district court may modify a
term of imprisonment that was “based on a sentencing range that has subsequently
been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). A
reduction, however, must be “consistent with applicable policy statements issued
by the Sentencing Commission.” Id. The applicable policy statement, found in
U.S.S.G. § 1B1.10, provides that “[a] reduction in the defendant’s term of
imprisonment . . . is not authorized under 18 U.S.C. § 3582(c)(2) if . . . [the]
amendment . . . does not have the effect of lowering the defendant’s applicable
guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). The commentary to the 2011
version of the Guidelines defines “applicable guideline range” as the “range that
corresponds to the offense level and criminal history category.” Id. § 1B1.10,
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comment. (n.1(A)). The commentary further provides that a § 3582(c)(2) sentence
reduction is not authorized and not consistent with § 1B1.10(a)(2)(B) where “the
amendment does not have the effect of lowering the defendant’s applicable
guideline range because of the operation of another guideline or statutory provision
(e.g., a statutory mandatory minimum term of imprisonment).” Id.
Amendment 750 to the Sentencing Guidelines amended the drug quantity
table in § 2D1.1(c) to reduce offense levels in crack cocaine cases. See U.S.S.G.
App. C, Amend. 750. It was made retroactive by Amendment 759, effective
November 1, 2011. See id., Amend. 759.
We recently held that the FSA may not be used to reduce a sentence
pursuant to a § 3582 motion because it was a congressional statutory change and
not a guidelines amendment issued by the Sentencing Commission. See United
States v. Berry, 701 F.3d 374, 377 (11th Cir. 2012). Further, interpreting the
general savings clause, 1 U.S.C. § 109, we also stated that the FSA has not been
made retroactively applicable to sentences imposed before its 2010 enactment. Id.;
see also Dorsey v. United States, 567 U.S. ___, ___, 132 S.Ct. 2321, 2326 (2012)
(holding that the FSA’s reduced statutory mandatory minimums apply to
defendants who committed crack cocaine offenses before August 3, 2010, but were
sentenced after the date the FSA went into effect).
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In Hippolyte, we also recently held that the district court properly denied the
defendant’s § 3582(c)(2) motion where the defendant was subject to a mandatory
minimum sentence for a pre-FSA offense involving cocaine base. United States v.
Hippolyte, 712 F.3d 535, 540-42 (11th Cir. 2013), petition for cert. filed, (U.S.
June 12, 2013) (No. 12-10828). Noting that the FSA did not apply retroactively,
we explained that the defendant’s guideline range was the statutory minimum at
the time of his sentencing, and thus Amendment 750 did not lower his guideline
range. Id. at 541-42.
We conclude from the record that the district court properly denied Grier’s
motion for a sentence reduction. Grier’s argument that the FSA authorizes the
district court to reduce his sentence is foreclosed by our decision in Berry, where
we explained that the FSA is not an amendment to the Guidelines authorized by
the Sentencing Commission, and thus, it cannot serve as a basis for a § 3582(c)(2)
sentence reduction in Grier’s case. See Berry, 701 F.3d at 377. Moreover,
Amendment 750 would not lower Grier’s applicable guideline range because
(1) Grier’s sentence as to Count Three was already reduced to the pre-FSA
statutory minimum; and (2) the FSA does not apply retroactively to defendants
such as Grier who were sentenced before the FSA’s effective date. See U.S.S.G.
§ 1B1.10, comment. (n.1(A)); Berry, 701 F.3d at 377. Accordingly, we affirm the
district court’s order denying Grier’s § 3582(c)(2) motion for a sentence reduction.
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AFFIRMED.
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