NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1176n.06
No. 12-5182
FILED
UNITED STATES COURT OF APPEALS Nov 13, 2012
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
TAURUS HOLLINS, ) KENTUCKY
)
Defendant-Appellant. )
Before: MERRITT, MARTIN, and GILMAN, Circuit Judges.
PER CURIAM. Taurus Hollins, who is represented by counsel, appeals a district court order
that reduced his sentence under 18 U.S.C. § 3582(c)(2).
Hollins pleaded guilty to one count of possessing with the intent to distribute crack cocaine.
Because Hollins was responsible for 14.972 grams of crack cocaine, he had an advisory sentencing
guidelines range of seventy-seven to ninety-six months of imprisonment. Hollins, however, was
subject to a statutory minimum sentence of sixty months of imprisonment. See 21 U.S.C.
§ 841(b)(1)(B)(iii) (2008). On June 2, 2008, the district court sentenced Hollins to seventy-seven
months of imprisonment. We affirmed Hollins’s conviction on appeal. See United States v. Hollins,
No. 08-5740 (6th Cir. Feb. 18, 2011) (order).
In December 2011, following the enactment of the Fair Sentencing Act of 2010 (FSA), Pub.
L. No. 111–120, 124 Stat. 2372, and retroactive amendments to the crack cocaine sentencing
guidelines, Hollins filed a section 3582(c)(2) motion to reduce his sentence. The district court
denied the motion without prejudice and stated that it would review Hollins’s eligibility for a
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sentence reduction under section 3582(c)(2) in accordance with the procedure that it had established
in General Order Number 2011-04. General Order Number 2011-04 sets forth the court’s procedure
for “review[ing] sentences of currently-incarcerated individuals that may be subject to reduction in
accordance with 18 U.S.C. § 3582(c)(2) and the guidance provided in Section 1B1.10 of the
sentencing guidelines.”
The probation office subsequently filed a memorandum with the district court wherein it
determined that the retroactive amendments to the crack-cocaine guidelines reduced Hollins’s
sentencing guidelines range to fifty-one to sixty-three months of imprisonment. However, because
Hollins was still subject to a statutory minimum sentence of sixty months of imprisonment, his
amended sentencing guidelines range effectively became sixty to sixty-three months of
imprisonment. Hollins objected to the memorandum, arguing that the FSA applied retroactively and
that he was no longer subject to a statutory minimum sentence because his offense involved less than
twenty-eight grams of crack cocaine. See 21 U.S.C. § 841(b)(1)(B)(iii) (2010). The district court
determined that it was without jurisdiction to reduce Hollins’s sentence below the statutory
minimum that was in effect at the time of Hollins’s original sentencing, because section 3582(c)(2)
authorizes courts to reduce sentences only in accordance with subsequently lowered sentencing
guidelines ranges. Accordingly, the district court reduced Hollins’s sentence to sixty months of
imprisonment.
On appeal, Hollins argues that the district court erred by applying the statutory minimum
because the FSA applies retroactively to defendants who were sentenced prior to the statute’s
enactment, and a sixty month sentence is grossly disproportionate to his crime, in violation of the
Eighth Amendment.
The district court’s order is reviewed de novo. See United States v. Hameed, 614 F.3d 259,
261–62 (6th Cir. 2010). A reduction in a defendant’s sentence under section 3582(c)(2) is
appropriate only where “a defendant . . . has been sentenced to a term of imprisonment based on a
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sentencing range that has subsequently been lowered by the Sentencing Commission” and “such a
reduction is consistent with applicable policy statements issued by the Sentencing Commission.”
18 U.S.C. § 3582(c)(2). In determining the extent of a reduction under § 3582(c)(2), the district
court “shall substitute only the [retroactive guideline] amendments . . . for the corresponding
guideline provisions that were applied when the defendant was sentenced and shall leave all other
guideline application decisions unaffected.” USSG § 1B1.10(b)(1). Section 3582(c)(2) has a
“limited scope and purpose,” Dillon v. United States, 130 S. Ct. 2683, 2692 (2010), “does not
authorize a resentencing,” and “permits a sentence reduction within the narrow bounds established
by the [United States Sentencing] Commission.” Id. at 2694.
Hollins’s sentence was reduced in accordance with the procedures set forth in General Order
Number 2011-04, which addresses guideline reductions under section 3582(c)(2). Hollins did not
receive a new sentencing hearing, and the court’s order granting the reduction shows that the
reduction was granted pursuant to section 3582(c)(2). In reducing Hollins’s sentence under
section 3582(c)(2), the district court properly applied the amended crack-cocaine guidelines and left
all other sentencing determinations, including the application of the sixty-month statutory minimum,
intact. See 18 U.S.C. § 3582(c)(2); USSG § 1B1.10(b)(1); Dillon, 130 S. Ct. at 2692, 2694. The
FSA does not apply to Hollins because he was sentenced prior to the statute’s effective date. See
Dorsey v. United States, 132 S. Ct. 2321, 2335 (2012). Finally, Hollins’s argument that his
mandatory-minimum sentence violates the Eighth Amendment is without merit. See United States
v. Graham, 622 F.3d 445, 452–54 (6th Cir. 2010), cert. denied, 131 S. Ct. 2962 (2011).
The district court’s judgment is affirmed.
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MERRITT, Circuit Judge, concurring. I do not agree that the Fair Sentencing Act is not
retroactive in its application to cases under the old crack guidelines, but our court has held to the
contrary.