             Case: 11-16091     Date Filed: 07/18/2012   Page: 1 of 4

                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 11-16091
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 5:07-cr-00010-RS-WCS-2


UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                      versus

RANDALL TEHRON RANDOLPH,

                                                             Defendant-Appellant.

                         __________________________

                Appeal from the United States District Court
                      for the Northern District of Florida
                         _________________________
                                (July 18, 2012)

Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

      Randall Tehron Randolph appeals from the district court’s denial of his motion

to reduce his sentence under 18 U.S.C. § 3582(c)(2) pursuant to Amendment 750 to
              Case: 11-16091     Date Filed: 07/18/2012   Page: 2 of 4

the Sentencing Guidelines. The district court denied his motion because his revised

sentencing range remained 240 months’ imprisonment pursuant to the mandatory

minimum in 21 U.S.C. § 841(b), even though he was sentenced below that minimum

due to his substantial assistance. On appeal, Randolph argues that he was entitled to

a reduction in his sentence because Congress intended for the amended statutory

minimum penalties under the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124

Stat. 2372 (2010) (“FSA”), to apply retroactively. After thorough review, we affirm.

      We review a district court’s decision to not to reduce a sentence pursuant to §

3582(c)(2) for abuse of discretion. United States v. Davis, 587 F.3d 1300, 1303 (11th

Cir. 2009).

      A district court may modify a term of imprisonment in the case of a defendant

who was sentenced to a term of imprisonment based on a sentencing range that has

subsequently been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2).

However, “[w]here a retroactively applicable guideline amendment reduces a

defendant’s base offense level, but does not alter the sentencing range upon which his

or her sentence was based, § 3582(c)(2) does not authorize a reduction in sentence.”

United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008); see also U.S.S.G. §

1B1.10(a)(2)(B). Specifically, a reduction in a defendant’s term of imprisonment is

not authorized by § 3582(c)(2) where a retroactively-applicable amendment does not


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lower the defendant’s applicable guideline range due to the operation of another

statutory provision, such as a statutory mandatory minimum term of imprisonment.

U.S.S.G. § 1B1.10, comment. (n.1). This applies even when the defendant was

originally sentenced below the statutory minimum due to the government’s filing of

a substantial-assistance motion, because a district court’s downward departure does

not “eliminate the otherwise applicable mandatory minimum.” United States v.

Williams, 549 F.3d 1337, 1340-41 (11th Cir. 2008).

      In this case, Randolph was not eligible for a reduced sentence under §

3582(c)(2) because Amendment 750 did not alter his guideline range. Moore, 541

F.3d at 1330. As the record shows, Randolph’s guideline range was dictated by the

20-year statutory minimum sentence for his offense, rather than by his offense level

under the Guidelines. The fact that Randolph was sentenced below his statutory

minimum is irrelevant, since the sentencing court’s downward departure did not

eliminate the otherwise-applicable mandatory minimum. Williams, 549 F.3d at

1340-41.   And although the district court in 2008 granted Randolph’s prior

unopposed § 3582(c)(2) motion and reduced his sentence pursuant to Amendment

706 (despite the fact that the prior reduction similarly would have been precluded by

the reasoning in Moore and Williams), this fact alone does not prevent the

government from opposing a further reduction under Amendment 750. Finally,


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Randolph’s arguments concerning the retroactive application of the FSA’s amended

mandatory-minimum penalties are outside the scope of § 3582(c)(2), since §

3582(c)(2) provides relief only when a defendant’s sentence is based on a sentencing

range that subsequently has been lowered by the U.S. Sentencing Commission, not

by a statutory amendment enacted by Congress. In short, the district court did not

abuse its discretion in denying Randolph’s § 3582(c)(2) motion, and we affirm.

      AFFIRMED.




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