ALD-192                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 12-1397
                                     ___________

                           UNITED STATES OF AMERICA

                                           v.

                             GEORGE W. CRUTE, III,
                                                Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                          (D.C. Crim. No. 05-cr-00100-001)
                     District Judge: Honorable Gary L. Lancaster
                     ____________________________________

                        Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    May 31, 2012
                Before: SLOVITER, FISHER and WEIS, Circuit Judges
                             (Opinion filed: June 8, 2012)
                                      _________

                                      OPINION
                                      _________

PER CURIAM.

      George W. Crute, III, appeals pro se from the order of the District Court denying

his motion for a reduction in sentence under 18 U.S.C. § 3582(c)(2). We will affirm.

                                           I.

      In 2006, Crute was convicted of two counts of possessing with the intent to
distribute more than five grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1).

Because Crute had been convicted of a previous felony drug offense, the mandatory

minimum statutory sentence at the time of his sentencing was ten years of imprisonment.

See 21 U.S.C. § 841(b)(1)(B) (2006 version). The District Court imposed that mandatory

minimum and sentenced Crute to ten years of imprisonment on each count to run

concurrently. We affirmed. See United States v. Crute, 238 F. App’x 903, 904 (3d Cir.

2007).

         Thereafter, the Fair Sentencing Act of 2010 (“FSA”) became law on August 3,

2010. See United States v. Dixon, 648 F.3d 195, 197 (3d Cir. 2011). In relevant part, the

FSA increased the amount of crack cocaine necessary to trigger a mandatory minimum

sentence under 21 U.S.C. § 841(b)(1)(B) from five grams to twenty-eight grams. See

Dixon, 648 F.3d at 197. The FSA also authorized the United States Sentencing

Commission to amend the Sentencing Guidelines to conform with the FSA, which the

Commission did effective November 1, 2010. See id. at 197-98. The Commission later

made Amendment 750, which revised the Guidelines drug quantity tables in accordance

with the FSA, retroactive effective November 1, 2011. See United States v. Curet, 670

F.3d 296, 309 (1st Cir. 2012) (citing U.S.S.G. § 1B1.10(c)), petition for cert. filed, —

U.S.L.W. —, (U.S. May 1, 2012) (No. 11-10123).

         Crute then filed pro se the § 3582(c)(2) motion at issue here on the basis of the

retroactive FSA-related Guidelines amendments and the FSA itself. The District Court

appointed counsel for that purpose but, for reasons not apparent from the record, Crute
                                               2
continued to file papers in support of his motion pro se. The District Court denied the

motion on the ground that the FSA does not retroactively apply to Crute’s sentence

because he was sentenced before its effective date. Crute appeals pro se.1

                                            II.

       In his § 3582(c)(2) motion, Crute mentioned the FSA-related Guidelines

amendments and purported to seek relief on the reduction of a Guidelines sentencing

range applicable to him. His only actual argument in this regard, however, was that the

FSA itself should apply retroactively to relieve him of his statutory minimum sentence. 2

The District Court determined that the FSA does not apply retroactively to Crute.

Assuming without deciding that § 3582(c)(2) permits a claim based on the FSA itself as

opposed to its related Guidelines amendments,3 the District Court was right.


1
  We have jurisdiction under 28 U.S.C. § 1291. The Government initially argued below,
without citation to authority, that the District Court lacked “jurisdiction” over Crute’s
motion in light of a previous § 3582(c)(2) motion he filed. Crute, however, filed his
previous motion on the basis of a different Guidelines amendment before the FSA
became law. In any event, we perceive no jurisdictional impediment to the District
Court’s ability to address his second motion on the merits, or to ours. We exercise
plenary review over legal issues raised on a § 3582(c)(2) motion. See United States v.
Doe, 564 F.3d 305, 307 n.2 (3d Cir. 2009).
2
  Crute also argued that, on resentencing, the District Court should favorably consider his
post-conviction rehabilitation in applying the factors set forth in 18 U.S.C. § 3553(a).
The District Court did not reach that argument and, because we agree that Crute was not
eligible for resentencing in the first place, we do not reach it either.
3
  The statute permits district courts to reduce a defendant’s sentence when the defendant
“has been sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. §
994(o) . . . if such a reduction is consistent with applicable policy statements issued by
                                             3
       As Crute acknowledges on appeal, we and every other Court of Appeals to have

addressed the issue have held that the FSA does not apply retroactively to defendants,

like Crute, who were sentenced before its effective date. See United States v. Reevey,

631 F.3d 110, 114-15 (3d Cir. 2010). We later held that the FSA is applicable to

defendants who committed their crimes before its effective date but who, unlike Crute,

were sentenced only thereafter. See Dixon, 648 F.3d at 203. We also explained in that

case that the Sentencing Commission’s decision to make the FSA-related Guidelines

amendments retroactive “does not affect the statutory mandatory minimums” that were

amended by the FSA itself. Id. at 198 n.1; see also Doe, 564 F.3d at 312 (holding that a

defendant is not eligible for a reduction under § 3582(c)(2) when the sentence is the

product of a mandatory statutory minimum). Thus, under the controlling law of this

Circuit, neither the FSA itself nor the Sentencing Guidelines amendments promulgated

thereunder entitle Crute to a reduction in his mandatory minimum sentence.

       Perhaps recognizing as much, Crute argues on appeal that Reevey “is no longer

good law” because the Sentencing Commission later made its FSA-related amendments

retroactive and its decision to do so makes the FSA itself retroactive as well. Crute cites

no authority for that proposition, and we have located none. To the contrary, the only

Court of Appeals to have addressed it precedentially has rightly rejected it as “illogical.”

Curet, 670 F.3d at 309. As that court explained, the Sentencing Commission’s authority

the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). This language contemplates only
certain challenges based on amendments to the Guidelines, not on legislation. We need
not decide the issue, however, because Crute’s claim clearly lacks merit.
                                              4
to make Guidelines amendments retroactive does not extend to statutes, and the

Commission expressly stated in making its FSA-related amendments retroactive that they

do not make retroactive the FSA itself. See id. at 309-10 (citing 28 U.S.C. § 994(u) and

76 Fed. Reg. at 41,333).

          Crute also notes that the United States Supreme Court has granted certiorari to

address whether (as we later held in Dixon) the FSA applies to defendants who

committed their crimes before its effective date but who, unlike Crute, were sentenced

only thereafter. See United States v. Fisher, 635 F.3d 336 (7th Cir. 2011), cert. granted

sub nom., Dorsey v. United States, 132 S. Ct. 759 (Nov. 28, 2011) (No. 11-5683); United

States v. Hill, 417 F. App’x 560 (7th Cir. 2011), cert. granted, 132 S. Ct. 759 (Nov. 28,

2011) (No. 11-5721). Crute does not argue that we should stay this appeal pending the

Supreme Court’s decision in those cases, however, and we see no reason to do so. The

issue on which the Supreme Court granted certiorari does not apply to Crute because he

was sentenced before the FSA’s effective date. If the Supreme Court nevertheless

addresses the retroactivity of the FSA as to defendants in Crute’s situation, of course,

then our ruling does not prevent Crute from seeking whatever relief may be available in

that regard if it is otherwise proper for him to do so. We express no opinion on those

issues.

          For these reasons, we will affirm the judgment of the District Court.




                                                5
