     Case: 12-30936   Document: 00512239603     Page: 1   Date Filed: 05/13/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                 FILED
                                                                May 13, 2013
                               No. 12-30936
                             Summary Calendar                   Lyle W. Cayce
                                                                     Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

ANDREW D. KELLY,

                                           Defendant-Appellant


                Appeal from the United States District Court
                   for the Western District of Louisiana


Before JONES, DENNIS, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
      In 2004, Andrew D. Kelly pleaded guilty to possession with intent to
distribute 50 grams or more of cocaine base (Count One) and possession of a
firearm during a drug-trafficking offense (Count Two). Following Amendment
706 to the United States Sentencing Guidelines, Kelly’s sentence on Count One
was reduced to 121 months in prison. Kelly filed a motion to reduce pursuant
to 18 U.S.C. § 3582(c)(2) based on Amendment 750 to the Sentencing Guidelines,
which lowered the base offense levels for crack cocaine offenses in conformity
with the Fair Sentencing Act (FSA) of 2010, Pub. L. No. 111-220, 124 Stat. 2372.
The district court granted the motion and reduced Kelly’s sentence from 121
months to 120 months after determining that it could not further reduce the
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                                  No. 12-30936

sentence due to the mandatory minimum in effect at the time of his original
sentencing.   See 21 U.S.C. § 841(b)(1)(A)(iii) (2004) (setting the 10-year
mandatory minimum level for cocaine base at 50 grams).
      Under the FSA, the new statutory minimum for the drug quantity
originally attributed to Kelly (164.45 grams) would be 5 years. Compare 21
U.S.C. § 841(b)(1)(B)(iii) (2010) (setting the 5-year mandatory minimum level for
cocaine base at 28 grams), with 21 U.S.C. § 841(b)(1)(A)(iii) (2010) (setting the
10-year mandatory minimum level for cocaine base at 280 grams). Kelly
contends that he is entitled to benefit from all of the changes wrought by the
FSA such that the district court erred in declining to reduce his sentence below
the original mandatory minimum of 10 years.
      Pursuant to § 3582(c)(2), a defendant’s sentence may be modified if he was
sentenced to “‘a term of imprisonment based on a sentencing range that
subsequently was lowered by the Sentencing Commission.’” United States v.
Doublin, 572 F.3d 235, 237 (5th Cir. 2009) (quoting § 3582(c)(2)). The district
court’s decision whether to reduce a sentence under § 3582(c)(2) is reviewed for
an abuse of discretion, while the court’s interpretation of the Guidelines is
reviewed de novo. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009). A
reduction under § 3582(c)(2) is not authorized if an amendment does not lower
the guideline range due to, for example, the operation of a statutory mandatory
minimum sentence. U.S. SENTENCING GUIDELINES MANUAL § 1B1.10, cmt.
n.1(A).
      We have previously held that where a defendant was subject to a 10-year
mandatory minimum sentence, the district court is not authorized to grant a
reduction below that minimum. See United States v. Carter, 595 F.3d 575, 581
(5th Cir. 2010). Kelly argues that our prior case law has been abrogated by
Dorsey v. United States, 132 S. Ct. 2321 (2012). In Dorsey, the Court determined
that a defendant who committed an offense prior to the effective date of the FSA
but was sentenced after the effective date was entitled to the benefits of the FSA

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                                     No. 12-30936

for crimes to which it applies. Id. at 2335 (“[I]n federal sentencing the ordinary
practice is to apply new penalties to defendants not yet sentenced.”).
      Kelly argues that his most recent § 3582(c)(2) modification hearing was a
“sentencing” that occurred after the effective date of the FSA, such that he is
entitled to the benefit of Dorsey. We disagree. Dorsey expressly acknowledged
that defendants who committed a crime addressed in the FSA but who were
sentenced before the FSA’s effective date will be subject to a different result than
those who committed the same crime on the same date but were sentenced
afterwards. Id. (“We consequently conclude that this particular new disparity
(between those pre-Act offenders already sentenced and those not yet sentenced
as of August 3[, 2010]) cannot make a critical difference.”). The Sixth Circuit
recently addressed a virtually identical factual scenario to that of Kelly and held:
“[W]e . . . have confirmed, even in light of Dorsey, that the FSA is not retroactive
to defendants like Hammond whose sentences were modified after the effective
date of the FSA but who were originally sentenced before its effective date.”
United States v. Hammond, 712 F.3d 333, 336 (6th Cir. 2013). The Ninth Circuit
also examined a virtually identical factual scenario and agreed “with [its] sister
circuits” that had “rejected the argument that Dorsey requires retroactive
application of the FSA’s mandatory minimums to those sentenced before the
Act’s passage.” United States v. Augustine, 712 F.3d 1290 (9th Cir. 2013)
(collecting cases).1
      Nothing in Dorsey purports to change Supreme Court and Fifth Circuit
precedent that §3582(c)(2) hearings are not plenary re-sentencings. See Dillon
v. United States, 130 S. Ct. 2683, 2692 (2010) (emphasizing limited nature of
§3582(c)(2) proceedings); United States v. Garcia, 655 F.3d 426, 430-31 (5th Cir.


      1
         Just like Kelly, in both Hammond and Augustine, the defendant had originally been
sentenced before the FSA’s enactment and received a reduction to the pre-FSA mandatory
minimum of 120 months after the FSA’s enactment. Hammond, 712 F.3d at 335; Augustine,
712 F.3d at 1292.

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2011), cert. denied, 132 S. Ct. 1124 (2012) (same). We thus join our sister
circuits in declining to treat a § 3582(c)(2) modification hearing as the equivalent
of an original sentencing hearing under Dorsey.                   See United States v.
Meneweather, No. 12-31139, 2013 U.S. App. LEXIS 6280 (5th Cir. Mar. 28,
2013) (unpublished) (rejecting defendant’s argument under Dorsey and holding
that pre-FSA mandatory minimum applies); United States v. Stone, 473 F. App’x
393, 394 (5th Cir. 2012) (unpublished) (same); accord United States v. Speed, No.
12-3483, 2013 U.S. App. LEXIS 6109 (7th Cir. Mar. 26, 2013) (unpublished);
United States v. Pratt, No. 12-3422, 2013 U.S. App. LEXIS 4753 (3d Cir. Mar. 8,
2013) (unpublished); United States v. Snow, No. 12-4160, 2013 U.S. App. LEXIS
2548, at *4 (10th Cir. Feb. 6, 2013) (unpublished) (“The exception outlined in
Dorsey applies to post-FSA sentences rather than post-FSA sentence
reductions.”);2 United States v. Berry, 701 F.3d 374, 378 (11th Cir. 2012) (“The
Supreme Court in Dorsey carefully confined its application of the FSA to pre-Act
offenders who were sentenced after the Act’s effective date.”).
      AFFIRMED.




      2
          We cite these unpublished cases for their procedural similarity and persuasiveness.

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