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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-12985
Non-Argument Calendar
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D.C. Docket No. 6:07-cr-00048-RBD-DAB-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONARD V. SMITH,
a.k.a. Ray-Ray,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(January 14, 2014)
Before HULL, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
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Leonard Smith, a federal prisoner convicted of crack cocaine offenses,
appeals the district court’s denial of his pro se 18 U.S.C. § 3582(c)(2) motion to
reduce his total 125-month sentence based on Amendment 750 to the Sentencing
Guidelines and the Fair Sentencing Act (“FSA”). The district court concluded that
it lacked authority to grant Smith’s § 3582(c)(2) motion. After review, we affirm. 1
Under § 3582(c)(2), a district court has the authority to reduce a defendant’s
prison term if it was “based on a sentencing range that has subsequently been
lowered by the Sentencing Commission pursuant to 28 U.S.C. [§] 994(o).” 18
U.S.C. § 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1). If, however, the
defendant’s sentencing range is not lowered by a retroactively applicable guideline
amendment, the district court has no authority to reduce the defendant’s sentence.
United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008); U.S.S.G.
§ 1B1.10(a)(2)(B). Thus, a reduction is not authorized if an applicable amendment
does not lower a defendant’s guidelines range “because of the operation of another
guideline or statutory provision,” such as the statutory mandatory minimum term
of imprisonment. U.S.S.G. § 1B1.10 cmt. n.1(A); see also United States v. Berry,
701 F.3d 374, 376 (11th Cir. 2012) (stating that a sentence reduction is not
authorized where the amendment “reduces a defendant’s base offense level, but
1
We review de novo the district court’s legal conclusions regarding the scope of its
authority under 18 U.S.C. § 3582(c)(2). United States v. Liberse, 688 F.3d 1198, 1200 n.1 (11th
Cir. 2012).
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does not alter the sentencing range upon which his or her sentence was based”
(quoting Moore, 541 F.3d at 1330)); United States v. Glover, 686 F.3d 1203, 1206
(11th Cir. 2012).
At Smith’s 2007 sentencing, Smith was held responsible for 14.8 grams of
crack cocaine. Based on this drug quantity, Smith’s initial advisory guidelines
range for his two crack cocaine offenses was 57 to 71 months’ imprisonment using
a base offense level of 26. See U.S.S.G. § 2D1.1(c)(7) (2006). Because the
mandatory minimum under 21 U.S.C. § 841(b)(1)(B) (2006) was five years, or 60
months, Smith’s guidelines range became 60 to 71 months. See U.S.S.G.
§ 5G1.1(c)(2) (2006) (prohibiting the district court from imposing a guidelines
sentence below the statutory mandatory minimum sentence).
At sentencing, the district court granted the government’s § 5K1.1 motion
for substantial assistance and lowered Smith’s offense level by five levels, which
resulted in a guidelines range of 41 to 51 months for Smith’s crack cocaine
offenses. The district court imposed 41-month concurrent sentences for Smith’s
two crack cocaine offenses and a mandatory 84-month consecutive sentence for
Smith’s firearm offense, for a total sentence of 125 months.
Here, Smith is not eligible for a § 3582(c)(2) sentence reduction based on
Amendment 750 because that amendment did not lower his applicable guidelines
range. Amendment 750, made retroactive through Amendment 759, among other
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things, changed the base offense levels for crack cocaine offenses in U.S.S.G.
§ 2D1.1(c)’s Drug Quantity Tables. See U.S.S.G. app. C, amend. 750 (making
permanent Amendment 748’s temporary, emergency changes). Had Amendment
750 been in effect at the time of Smith’s 2007 sentencing, Smith’s base offense
level would have been 20 rather than 26, see U.S.S.G. § 2D1.1(c)(10) (2013), and
the resulting initial guidelines range would have been 30 to 37 months, not 57 to
71 months. However, because Smith was subject to § 841(b)(1)(B)’s mandatory
minimum 60-month sentence, his sentencing range under the Sentencing
Guidelines would not have been lowered. See U.S.S.G. § 5G1.1(b) (2006) (stating
that when the statutory mandatory minimum exceeds the high end of the applicable
guideline range, the statutory mandatory minimum “shall be the guideline
sentence”). Because Amendment 750 did not have the effect of lowering Smith’s
sentencing range, the district court was not authorized under § 3582(c)(2) to reduce
Smith’s sentence. See Berry, 701 F.3d at 377; Glover, 686 F.3d at 1206.
Contrary to Smith’s argument, the fact that he received a downward
departure for substantial assistance does not change this outcome. As we
explained in Williams, the district court’s starting point for the substantial
assistance departure is the mandatory minimum sentence, not the guidelines range
initially calculated using the base offense level. See United States v. Williams,
549 F.3d 1337, 1339-41 (11th Cir. 2008). In Williams, this Court concluded that a
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district court’s granting of a § 5K1.1 motion does not “effectively waive[ ] the
statutory mandatory minimum and thus entitle[ ] [the defendant] to a sentence
reduction.” Id. at 1339.
Likewise, this Court has already rejected the argument that the new
definition of “applicable guideline range” in U.S.S.G. § 1B1.10 from Amendment
759 requires the district court to determine the range before applying the
mandatory minimum sentence. See United States v. Hippolyte, 712 F.3d 535, 540-
41 (11th Cir.), cert. denied, 134 S. Ct. 181 (2013) (“In fine, it is clear that the new
definition of applicable guideline range has nothing to do with mandatory
minimums and does nothing to alter this court’s rule that the applicable guideline
range is the scope of the sentences available to the district court, which could be
limited by a statutorily imposed mandatory minimum ‘guideline sentence.’”
(quotation marks omitted)). Rather, to determine the “applicable guideline range”
as defined by U.S.S.G. § 1B1.10, the court must proceed through all the steps
outlined in § 1B1.1(a) to calculate the defendant’s range, including U.S.S.G.
§ 5G1.1’s consideration of the statutory mandatory minimum sentence. Id. at 541.2
Further, as the commentary to U.S.S.G. § 1B1.10 makes clear, a § 3582(c)(2)
2
Smith attempts to distinguish Williams and Hippolyte because they involved application
of U.S.S.G. § 5G1.1(b) rather than § 5G1.1(c). Although those two cases involved a statutory
mandatory minimum that exceeded the initial guidelines range and thus, under § 5G1.1(b),
became the guidelines sentence, their reasoning applies with equal force to cases in which, under
§ 5G1.1(c)(2), the statutory mandatory minimum raised the low end of the range.
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sentence reduction is inappropriate if, as in Smith’s case, an amendment does not
lower his applicable guideline range because of the operation of the statutory
mandatory minimum. U.S.S.G. § 1B1.10, cmt. n.1(A) (2013).
Finally, this Court also has rejected Smith’s argument that the FSA provides
a basis for granting a § 3582(c)(2) motion. See Hippolyte, 712 F.3d at 542; Berry,
701 F.3d at 377. The FSA is a statutory change, rather than a guidelines
amendment, and thus cannot serve as a basis for a § 3582(c)(2) sentence reduction.
Berry, 701 F.3d at 377. Further, even assuming Smith could bring his FSA claim
in a § 3582(c)(2) motion, his claim still would fail because he was convicted and
sentenced in 2007, and the FSA does not apply retroactively to defendants like
Smith who were sentenced before the FSA’s 2010 enactment. Id.; see also
Hippolyte, 712 F.3d at 542.3 Thus, neither Amendment 750 nor the FSA provided
a basis for the district court to reduce Smith’s sentence under § 3582(c)(2).
Accordingly, we affirm the district court’s denial of Smith’s § 3582(c)(2)
motion to reduce his sentence.
AFFIRMED.
3
Smith’s argument that the rule of lenity dictates retroactive application of the FSA to all
defendants fails because Smith does not point to an ambiguity in either 18 U.S.C. § 3582(c)(2) or
the FSA on that issue. See United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir.
2005) (explaining that the rule of lenity applies only when the provision remains ambiguous after
the application of the normal rules of construction).
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