                    Case: 12-11960         Date Filed: 11/08/2012   Page: 1 of 6

                                                                        [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-11960
                                        Non-Argument Calendar
                                      ________________________

                              D.C. Docket No. 9:09-cr-80022-DTKH-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,

                                                 versus

JASON DAVID SHERMAN,
a.k.a. Jason Sherman,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                           (November 8, 2012)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
              Case: 12-11960     Date Filed: 11/08/2012    Page: 2 of 6

      Jason David Sherman appeals the district court’s denial of his motion for a

sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). On appeal, Sherman

argues that the district court erred when it determined that because his sentence

was based on a mandatory-minimum sentence, it lacked the authority to reduce his

sentence pursuant to 18 U.S.C. § 3582(c)(2). Sherman contends that his current

72-month sentence was based upon the 121- to 151-month Guidelines range and a

substantial-assistance reduction, not the mandatory-minimum sentence in effect at

the time of his initial sentencing. The United States filed a brief in support of

confession of error. After a review of the record and briefs, we reverse the district

court’s finding that it had no authority to reduce Sherman’s sentence.

      “We review de novo the district court’s legal conclusions regarding the

scope of its authority under the Sentencing Guidelines.” United States v. White,

305 F.3d 1264, 1267 (11th Cir. 2002) (per curiam). “We review a district court’s

decision whether to reduce a sentence pursuant to § 3582(c)(2) for abuse of

discretion.” Id.

      “As a general rule, district courts may not modify a term of imprisonment

once it has been imposed, except in specific circumstances delineated in 18 U.S.C.

§ 3582(c).” United States v. Williams, 549 F.3d 1337, 1339 (11th Cir. 2008) (per

curiam). One exception is for a “defendant who has been sentenced to a term of

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imprisonment based on a sentencing range that has subsequently been lowered by

the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). “In such a case, ‘the court

may reduce the term of imprisonment, after considering the factors set forth in [18

U.S.C. §] 3553(a) to the extent that they are applicable, if such a reduction is

consistent with applicable policy statements issued by the Sentencing

Commission.’” Williams, 549 F.3d at 1339 (quoting 18 U.S.C. § 3582(c)(2)).

      The Fair Sentencing Act of 2010 (FSA), reflected in Amendment 750 to the

Sentencing Guidelines, reduced the statutory penalties for crack cocaine offenses.

See Fair Sentencing Act of 2010 § 2(a), Pub. L. No. 111-220, 124 Stat. 2372, 2372

(to be codified as amended at 21 U.S.C. § 841(b)(1)). As of November 1, 2011,

Amendment 750 applied retroactively. See U.S. Sentencing Guidelines Manual

(U.S.S.G.) app. C, amend. 713, at 253. Nevertheless, in a § 3582(c)(2)

proceeding, the district court lacks the authority to reduce a defendant’s sentence

when the amended guideline “does not have the effect of lowering the defendant’s

applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).

      In United States v. Liberse, the defendant’s Guidelines range at the time of

his original sentencing was 121 to 151 months. 688 F.3d 1198, 1199 (11th Cir.

2012). The defendant was subject to the 120-month mandatary minimum;

however, it did not affect the calculation of his Guidelines range because that

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mandatory minimum was less than the 121-month bottom of the Guidelines range.

Id. at 1199–1200. The defendant was not sentenced under a mandatory minimum,

but instead within the Guidelines range for his offense. Id. at 1200.

      The government later filed a Federal Rule of Criminal Procedure Rule 35(b)

motion to reduce the defendant’s sentence based on his substantial assistance to

the government; the district court granted the motion and reduced the defendant’s

sentence to 97 months. Id. After the promulgation of Amendment 750, the

defendant filed a § 3582(c)(2) motion to reduce his sentence, which the district

court denied after concluding that it lacked the authority to reduce the defendant’s

sentence. Id.

      This court noted that, regardless of whether the FSA applied, the defendant

would still be subject to the 120-month mandatory-minimum sentence. Id. at

1202. The mandatory minimum, we said, would be his amended Guidelines range

because the 120-month mandatory minimum was greater than the top of his

otherwise applicable amended Guidelines range of 70 to 87 months. Id.; see

U.S.S.G. § 5.G1(b). Since the defendant’s Guidelines range was lowered, we held

that the district court erred in concluding that it lacked the authority to reduce the

defendant’s sentence. Liberse, F.3d at 1202. Because the defendant had received

a substantial-assistance reduction from his original sentence, we determined that,

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based upon U.S.S.G. § 1B1.10(b)(2)(B), a comparable reduction to the amended

Guidelines range might be appropriate. Id. at 1203. We vacated and remanded for

the district court to consider to what extent, if any, the defendant’s sentence should

be reduced. Id.

      This case is similar to Liberse. Sherman initially faced a Guidelines range

of 121 to 151 months. The mandatory minimum at the time of Sherman’s

sentencing was 120 months. Sherman was sentenced to 132 months of

imprisonment. The government, however, later filed a motion under Rule 35(b) to

reduce the 132-month sentence based on Sherman’s substantial assistance. The

district court granted the motion and re-sentenced Sherman to a 72-month term of

imprisonment.

      As a result of FSA and its corresponding amendments, Sherman’s

Guidelines range was lowered from a range of 121 to 151 months of imprisonment

to a range of 78 to 97 months of imprisonment. But because Sherman was subject

to a 120-month mandatory minimum sentence, his Guidelines range must be 120

months of imprisonment. See U.S.S.G. § 5G1.1(b). This, however, is still a

reduction from the previously applied range of 121 to 151 months. See Liberse,

688 F.3d at 1202. Thus, because Sherman’s sentencing range was reduced by

Amendment 750, he meets the requirements of § 3582(c)(2), and the district court

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had the authority to consider reducing his sentence. See § 3582(c)(2).

      Furthermore, because Sherman received a Rule 35(b) substantial assistance

reduction from his original 132-month sentence, pursuant to U.S.S.G.

§ 1B1.10(b)(2)(B), a comparable reduction to the amended Guidelines range may

be appropriate. See Liberse, 688 F.3d at 1202. Therefore, we vacate the district

court’s denial of Sherman’s § 3582(c)(2) motion, and remand for the district court

to consider to what extent, if any, Sherman’s sentence should be reduced. See id.

at 1203.

      VACATED AND REMANDED.




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