[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 20, 2012
No. 12-10540
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 0:94-cr-06003-DTKH-4
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
RONALD FORD,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 20, 2012)
Before TJOFLAT, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Ronald Ford appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2)
motion. Ford’s motion requested that his 324-month sentence, imposed for
conspiracy to possess with intent to distribute cocaine base and possession with
intent to distribute cocaine base, be reduced in light of Amendment 750 to the
Sentencing Guidelines, which reduced the base offense levels corresponding to
some crack cocaine offenses. On appeal, Ford acknowledges that he was
ineligible for a § 3582(c)(2) reduction under controlling precedent, but argues that
the history and policy behind the Fair Sentencing Act of 2010 (“FSA”), Pub. L.
No. 111-220, 124 Stat. 2372 (2010), show an intent to grant district courts the
authority to make sentence reductions greater than those previously authorized.
Given the special nature of Amendment 750, Ford maintains that there is
substantial ambiguity as to whether the court had authority to reduce his sentence,
and he requests that we resolve that uncertainty in his favor under the rule of
lenity.
We review de novo the district court’s legal conclusions regarding the scope
of its authority under § 3582(c)(2). See United States v. Moore, 541 F.3d 1323,
1326 (11th Cir. 2008). Under § 3582(c), the district court “may not modify a term
of imprisonment once it has been imposed except . . . in the case of a defendant
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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). A modification is permitted only “if such a reduction is consistent
with applicable policy statements issued by the Sentencing Commission.” Id. The
Sentencing Guidelines provide that a reduction in sentence as the result of a
retroactively applicable amendment is not proper 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 Supreme Court has explicitly held that a district court may
not reduce a defendant’s sentence below his amended guideline range, unless his
original sentence was for a term below the guideline range. Freeman v. United
States, 564 U.S. __, 131 S.Ct. 2685, 2693, 180 L.Ed.2d. 519 (2011); Dillon v.
United States, 560 U.S. __, 130 S.Ct. 2683, 2691-92, 177 L.Ed.2d 271 (2010).
Effective November 1, 2011, Amendment 750 to the Sentencing Guidelines
altered the Drug Quantity Table used to calculate the base offense levels
corresponding to the possession of certain amounts of crack cocaine. See U.S.S.G.
App. C, Amend. 750 (2011). Amendment 750 notes that it “does not lower the
sentences[] for offenses involving . . . at least 2.8 kilograms but less than 4.5
kilograms [of crack cocaine].” U.S.S.G. App. C, Amend. 750, Part C at 394.
“The rule of lenity requires ambiguous criminal laws to be interpreted in
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favor of the defendants subjected to them.” United States v. Santos, 553 U.S. 507,
514, 128 S.Ct. 2020, 2025, 170 L.Ed.2d 912 (2008). “The simple existence of
some statutory ambiguity, however, is not sufficient to warrant application of that
rule.” Muscarello v. United States, 524 U.S. 125, 138, 118 S.Ct. 1911, 1919, 141
L.Ed.2d 111 (1998). In order for the rule of lenity to apply, there must be a
“grievous ambiguity or uncertainty in the statute.” Id. at 138-39, 118 S.Ct. at 1919
(quotations omitted).
Here, the district court lacked authority to reduce Ford’s sentence under
§ 3582(c)(2), as Amendment 750 did not lower his guideline range. Furthermore,
Ford is serving the minimum sentence available for his guideline range, thus, the
district court could not have reduced his sentence any further. Freeman, 564 U.S.
at __, 131 S.Ct. at 2693; Dillon, 560 U.S. at __, 130 S.Ct. at 2691-92. Ford has
not shown any “grievous ambiguity or uncertainty” in any criminal statute, and the
rule of lenity does not apply in this case. Accordingly, upon review of the record
and consideration of the parties’ briefs, we affirm the district court’s denial of
Ford’s motion.
AFFIRMED.
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United States v. Ronald Ford
Combined Opinion