           Case: 13-15937   Date Filed: 07/16/2014   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-15937
                        Non-Argument Calendar
                      ________________________

              D.C. Docket No. 5:03-cr-00023-KOB-PWG-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

SHANNON DEWAYNE STEELE,
a.k.a. Shannon Steele,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Alabama
                      ________________________

                             (July 16, 2014)



Before PRYOR, MARTIN, and EDMONDSON, Circuit Judges.
               Case: 13-15937     Date Filed: 07/16/2014    Page: 2 of 4


PER CURIAM:



      Shannon Dewayne Steele appeals the district court’s denial of his motion for

a sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2), following his convictions

for one count of conspiracy to possess with intent to distribute crack cocaine (in

violation of 21 U.S.C. § 846) and three counts of distribution of crack cocaine (in

violation of 21 U.S.C. § 841). The presentence investigation report calculated a

total offense level of 31 with a criminal history category of IV, for a corresponding

guideline imprisonment range of 151 to 188 months. But because he faced

statutory sentences of life under 21 U.S.C. § 841, his guideline imprisonment range

was life. Pursuant to a government motion for a U.S.S.G. § 5K1.1 downward

departure based upon his substantial assistance, the district court granted a

downward departure and sentenced Steele to 25 years’ imprisonment. Steele later

filed a motion for a sentence reduction, pursuant to § 3582(c)(2), in August 2013.

      On appeal, Steele argues that the failure to apply the Fair Sentencing Act of

2010 (“FSA”) to offenders who were sentenced before its enactment violates equal

protection. The crux of his argument is that the FSA was passed in recognition of

the racially discriminatory nature of the pre-FSA crack-cocaine sentencing scheme

so that the failure to apply it retroactively perpetuates unconstitutional racial

discrimination. He notes that rejection of his argument effectively leads to


                                           2
              Case: 13-15937      Date Filed: 07/16/2014   Page: 3 of 4


sentences that are at least 15 years greater than they would otherwise be. He also

asserts that he is entitled to § 3582(c)(2) relief regardless of his mandatory

statutory sentences, because his sentences were altered by the government’s

motion for a downward departure.

      We review de novo the district court’s legal conclusions on the scope of its

authority under § 3582(c)(2). United States v. Moore, 541 F.3d 1323, 1326 (11th

Cir. 2008).

      Relief under § 3582(c)(2) must be based on an amendment to the Sentencing

Guidelines that is listed in U.S.S.G. § 1B1.10(c). United States v. Berry, 701 F.3d

374, 376 (11th Cir. 2012). “[A] reduction is not authorized if the amendment does

not actually lower a defendant’s applicable guideline range because of the

operation of another guideline or statutory provision, such as a statutory mandatory

minimum prison term.” Id. (quotations omitted). Amendment 759 to the

Sentencing Guidelines clarified that, for purposes of § 3582(c)(2), departures are

not part of the applicable guideline range. See U.S.S.G. Amend. 759, app. C, Vol.

III, at 421; see also United States v. Williams, 549 F.3d 1337, 1339 (11th Cir.

2008) (Section 3582(c)(2) did not authorize a reduced sentence when defendant

was subject to an enhanced mandatory minimum sentence but received a

downward departure pursuant to U.S.S.G. § 5K1.1).




                                           3
              Case: 13-15937    Date Filed: 07/16/2014   Page: 4 of 4


      In Berry, we expressly rejected the argument that the FSA could serve as a

basis for § 3582(c)(2) relief. Berry, 701 F.3d at 377. We said that the FSA does

not apply retroactively to defendants that were sentenced before the effective date

of the FSA. Id.

      Here, the district court properly denied Steele a sentence reduction: the FSA

is not a proper basis upon which § 3582(c)(2) relief may be granted. See Berry,

701 F.3d at 377. Even assuming that Steele could raise his claims in a

§ 3582(c)(2) proceeding, we have already decided that the FSA is not retroactively

applicable. See id. His argument about the effect of the substantial assistance

departure on his guideline range is without merit. See U.S.S.G. Amend. 759, app.

C, Vol. III, at 421; Williams, 549 F.3d at 1339. Accordingly, we affirm the denial

of Steele’s motion for a sentence reduction.

      AFFIRMED.




                                         4
