                                     NOT PRECEDENTIAL



      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                     No. 12-4370
                    _____________

          UNITED STATES OF AMERICA

                           v.

               DONTA JAVON BELL,
                             Appellant

                    ____________

    On Appeal from the United States District Court
        for the Western District of Pennsylvania
         District Court No. 2-08-cr-00059-001
    District Judge: The Honorable Gary L. Lancaster

   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                 November 22, 2013

Before: AMBRO, SMITH and CHAGARES, Circuit Judges

               (Filed: December 3, 2013)



               _____________________

                      OPINION
               _____________________
SMITH, Circuit Judge.

      Donta Javon Bell (“Bell”) is an inmate convicted of distribution and

possession with intent to distribute 50 grams or more of cocaine base (“crack”).

Bell appeals from an order of the United States District Court for the Western

District of Pennsylvania that denied Bell’s motion for a reduction in sentence to 87

months but granted Bell a reduction in sentence to 120 months (the mandatory

minimum sentence at the time Bell was convicted). For the reasons set forth

below, we will affirm.

      In 2007, Bell sold 167.7 grams of crack to a confidential government

informant in a series of controlled buys.       He was arrested and indicted in

connection with these drug transactions.

      On July 24, 2008, Bell pled guilty to one count of distribution and

possession with intent to distribute 50 grams or more of cocaine base, in violation

of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii). Under the then-current version of

Section 2D1.1 of the United States Sentencing Guidelines, the guideline range for

Bell’s offense was 135–168 months. Since Bell’s offense involved more than 50

grams of a mixture or substance containing a detectable amount of crack cocaine,

under the then-current version of 21 U.S.C. § 841(b)(1)(A)(iii), Bell was subject to

a mandatory minimum prison term of 10 years (120 months). On October 24,



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2008, the District Court sentenced Bell to 135 months’ imprisonment. Bell did not

appeal his original sentence.

      In August 2010—almost two years after Bell was sentenced—Congress

passed the Fair Sentencing Act (the “FSA”) in order “[t]o restore fairness to

Federal cocaine sentencing.” Pub. L. 111-220, 124 Stat. 2372 (2010). Among

other changes, the FSA raised the quantities of crack required to trigger a

mandatory minimum sentence under 21 U.S.C. § 841(b). Relevant to Bell’s case,

the FSA raised the amount of crack required for a minimum 10-year sentence from

50 grams to 280 grams.

      Congress gave the United States Sentencing Commission authority to

implement amendments to the Sentencing Guidelines to conform the guidelines to

the revised penalty structure in the FSA. In response, the Sentencing Commission

amended U.S.S.G. § 2D1.1 to decrease the offense levels applicable to specific

weights of crack.    In June 2011, it was announced that the crack guideline

amendments      would apply retroactively to     offenders   serving   terms   of

imprisonment.    The retroactivity of the crack guideline amendments became

effective on November 1, 2011.

      On January 4, 2012, Bell filed a motion pursuant to 18 U.S.C. § 3582(c)(2)

seeking a reduction in his sentence based on the FSA and crack guideline

amendments.     Bell urged the District Court to ignore the 10-year mandatory

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minimum sentence that was in effect at the time he was convicted and argued that

the District Court should reduce his sentence to 87 months, the lower parameter of

his newly calculated guideline range under the FSA. The government did not

oppose a sentence reduction in principle, but argued that the reduced sentence

could not fall below the 10-year mandatory minimum to which Bell was subject at

the time he was sentenced. On November 13, 2012, the District Court reduced

Bell’s sentence to 120 months but declined to reduce his sentence to 87 months.

This timely appeal followed.1

      Bell’s appeal raises only an issue of law, and thus our review is plenary.

United States v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009); United States v. Wood,

526 F.3d 82, 85 (3d Cir. 2008). The District Court correctly held that the lower

guideline sentence of 87 months did not apply to Bell because he was convicted

and sentenced prior to the effective date of the FSA. See United States v. Reevey,

631 F.3d 110, 114–15 (3d Cir. 2010); United States v. Turlington, 696 F.3d 425,

428 (3d Cir. 2012). It properly held that Dorsey v. United States, 132 S. Ct. 2321

(2012), does not apply to Bell. Dorsey addresses the applicability of the FSA to

defendants who were convicted of crack offenses prior to the FSA’s effective date

of August 3, 2010, but were sentenced after that date, whereas Bell was both



1
 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
appellate jurisdiction pursuant to 28 U.S.C. § 1291.
                                        4
convicted and sentenced prior to the enactment of the FSA. See Turlington, 696

F.3d at 428 (“[Dorsey] does not address, or disturb, the basic principle that the

FSA does not apply to those defendants who were both convicted and sentenced

prior to the effective date of the FSA.”). Thus, the District Court did not err in

reducing Bell’s sentence to 120 months while declining to reduce his sentence to

87 months.

      Accordingly, we will affirm.




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