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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13212
Non-Argument Calendar
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D.C. Docket No. 3:05-cr-00006-RV-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
KENDALL IVAN BROWN,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(November 21, 2012)
Before CARNES, HULL, and JORDAN, Circuit Judges.
PER CURIAM:
Kendall Brown pleaded guilty to one count of conspiring to distribute and
possess with intent to distribute at least 50 grams of crack cocaine in violation of
21 U.S.C. § 841(a)(1), (b)(1)(A) and § 846, and one count of possession with intent
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to distribute at least 50 grams of crack cocaine in violation of 21 U.S.C. §
841(a)(1), (b)(1)(A). The presentence investigation report concluded that Brown
was responsible for two kilograms of crack cocaine, which made his base offense
level 38. See United States Sentencing Guidelines § 2D1.1(c)(1) (Nov. 2004). He
received a 3-level reduction for acceptance of responsibility, resulting in a total
offense level of 35. Brown’s criminal history category was VI, which resulted in a
guidelines range of 292–365 months imprisonment. But because Brown had at
least two prior felony drug convictions, he was subject to a mandatory minimum
life sentence. See 21 U.S.C. § 841(b)(1)(A). Because the statutory mandatory
minimum sentence was greater than the otherwise applicable guidelines range, the
statutory mandatory minimum of life imprisonment became the guidelines range of
life in prison. See U.S.S.G. § 5G1.1(b).
The government filed a U.S.S.G. § 5K1.1 substantial assistance motion, and
the district court departed downward from Brown’s guidelines range of life
imprisonment and sentenced him to 270 months imprisonment on each count, with
the sentences to run concurrently. The government later filed a Fed. R. Crim. P.
35(b) substantial assistance motion and the court reduced Brown’s sentences to
180 months imprisonment on each count, with the sentences to run concurrently.
Brown filed a pro se motion to reduce his sentence under 18 U.S.C. §
3582(c)(2), contending that Amendment 750 to the guidelines had reduced his
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guidelines range. The district court denied that motion, concluding that it lacked
authority to reduce Brown’s sentence because he is subject to a mandatory
minimum life sentence. This is Brown’s appeal.
The district court did not err in denying Brown’s § 3582(c)(2) motion.
Brown argues that Amendment 750 lowered his base offense level to 34, and after
the acceptance of responsibility reduction his total offense level would be 31,
resulting in a guidelines range of 188–235 months imprisonment. Brown was
sentenced based on a guidelines range of life in prison because he was subject to a
statutory mandatory minimum life sentence as a result of his prior felony drug
convictions. Because his guidelines range was based on a statutory mandatory
minimum, Amendment 750 did not lower Brown’s guidelines range. Because
Amendment 750 did not lower his guidelines range, Brown is not eligible for a
sentence reduction under 18 U.S.C. § 3582(c)(2). See United States v. Glover, 686
F.3d 1203, 1207 (11th Cir. 2012).
Brown also contends that he should have received a sentence reduction
because under U.S.S.G. § 1B1.10(b)(2)(B), a defendant who received a substantial
assistance downward departure may have his sentence comparably reduced below
the amended guidelines range. Section 1B1.10(b)(2)(B), however, does not permit
a court to reduce a defendant’s sentence based on a guidelines amendment that
does not actually lower his guidelines range, as is the case here. Glover, 686 F.3d
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at 1207–08. Brown further contends that the statutory mandatory minimum
sentences set out in the Fair Sentencing Act of 2010 apply in a § 3582(c)(2)
proceeding, but we need not address that question. Because Brown was
responsible for two kilograms of crack cocaine and had two prior felony drug
convictions, he would be subject to a mandatory minimum life sentence both
before and after the enactment of the Fair Sentencing Act of 2010, Pub. L. No.
111-220, 124 Stat. 2372.
AFFIRMED.
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