                    Case: 11-16150         Date Filed: 02/04/2013   Page: 1 of 7

                                                                        [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-16150
                                        Non-Argument Calendar
                                      ________________________

                               D.C. Docket No. 9:08-cr-80006-KLR-5



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,

                                                 versus

ISMAEL ESPINAL-TORRES,
a.k.a. David Duarte,
a.k.a. Palon,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

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

                                           (February 4, 2013)

Before BARKETT, PRYOR and FAY, Circuit Judges.

PER CURIAM:
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      Ismael Espinal-Torres, proceeding pro se, appeals the district court’s denial

of his motion for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2). On

appeal, Espinal-Torres argues that we should remand his case to allow the district

court to explain how it reached the original sentence, apply Amendment 750 to the

Sentencing Guidelines, and impose either a new or the original sentence. For the

reasons set forth below, we affirm the district court’s denial of Espinal-Torres’s

§ 3582(c)(2) motion.

                                          I.

      In 2009, Espinal-Torres was convicted of conspiracy to possess with intent

to distribute at least 50 grams of cocaine base, in violation of 21 U.S.C. § 846. In

his presentence investigation report (“PSI”), Espinal-Torres was assigned a base

offense level and a total offense level of 32, under U.S.S.G. § 2D1.1(a)(3),

because the probation officer found that he was responsible for between 150 and

500 grams of cocaine base. Based on a total offense level of 32 and a criminal

history category of II, his guideline range was 135 to 168 months’ imprisonment.

The statutory sentencing range was 120 months’ to life imprisonment.

      In a sentencing memorandum, Espinal-Torres argued that the correct base

offense level was 30 because he and the government had agreed that he was

responsible for 50 to 150 grams of cocaine. He argued that he should receive a

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3-level reduction for acceptance of responsibility, which would give him a total

offense level of 27 and a guideline range of 78 to 97 months’ imprisonment. He

asked the court to sentence him to the statutory minimum sentence of 120 months’

imprisonment. The sentencing transcript is not included in the record, but on

January 13, 2009, the court imposed judgment, sentencing Espinal-Torres to 120

months’ imprisonment.

      In November 2011, Espinal-Torres filed a § 3582(c)(2) motion for a

reduction in sentence. He acknowledged that he had been sentenced to the low

end of his guideline range. Under the recent amendment to the crack cocaine

guideline, his base offense level would be 26, and his total offense level would be

23. He asked the district court to resentence him to, at most, 57 months’

imprisonment.

      The government responded that Amendment 750 was inapplicable in this

case because Espinal-Torres received the statutory minimum sentence. Under

U.S.S.G. § 5G1.1(b), Espinal-Torres’s guideline range was the statutory minimum

sentence. Amendment 750 had not altered § 5G1.1(b), and therefore,

Espinal-Torres’s guideline range remained the same. The government also noted

that Espinal-Torres’s mandatory minimum sentence was unaffected by the Fair

Sentencing Act (“FSA”) because he was sentenced before the FSA took effect.

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The district court denied the § 3582(c)(2) motion without explanation.

                                          II.

      We review the district court’s denial of a § 3582(c)(2) motion for an abuse

of discretion and the “court’s legal conclusions about its jurisdiction under the

Sentencing Guidelines” de novo. United States v. Mills, 613 F.3d 1070, 1074-75

(11th Cir. 2010). An appellate court need not remand a case in which the district

court misapplied the Sentencing Guidelines if the error was harmless. United

States v. Williams, 503 U.S. 193, 203, 112 S.Ct. 1112, 1120-21, 117 L.Ed.2d 341

(1992). A sentencing error is harmless if it “did not affect the district court’s

selection of the sentence imposed.” Id. at 203, 112 S.Ct. at 1121. Thus, in a

§ 3582(c)(2) appeal, we applied harmless-error review where the defendant had

received the statutory minimum sentence. United States v. Jackson, 613 F.3d

1305, 1310 n.7 (11th Cir. 2010), cert. denied, 131 S.Ct. 1677 (2011).

      A district court may modify a defendant’s sentence in limited circumstances,

including when “a defendant . . . has been 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). The court may only modify a sentence

under § 3582(c)(2) if the relevant amendment to the Sentencing Guidelines has

“the effect of lowering the defendant’s applicable guideline range.” U.S.S.G.

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§ 1B1.10(a)(2)(B). A reduction is not authorized if “the amendment does not have

the effect of lowering the defendant’s applicable guideline range because of the

operation of another guideline or statutory provision (e.g., a statutory mandatory

minimum term of imprisonment).” U.S.S.G. § 1B1.10, comment. (n.1(A))

(emphasis omitted). Where a statutory minimum sentence exceeds the

otherwise-applicable guideline range, the statutory minimum sentence becomes

the defendant’s guideline range. Mills, 613 F.3d at 1076. A district court “lacks

jurisdiction to consider a § 3582(c)(2) motion, even when an amendment would

lower the defendant’s otherwise-applicable Guidelines sentencing range, when the

defendant was sentenced on the basis of a mandatory minimum.” Id. at 1078.

      Amendment 750, effective November 1, 2011, made permanent an

amendment lowering the base offense levels for particular crack cocaine quantities

in U.S.S.G. § 2D1.1(c). See U.S.S.G. App. C, Amends. 748, 750. These

amendments altered the Drug Quantity Table in § 2D1.1(c) so that a base offense

level of 26 applies where there was between 28 and 112 grams of cocaine base, a

base offense level of 28 applies where there was between 112 and 196 grams of

cocaine base, a base offense level of 30 applies where there was between 196 and

280 grams of cocaine base, and a base offense level of 32 applies where there was

between 280 and 840 grams of cocaine base. See id.; U.S.S.G. § 2D1.1(c)(4-7).

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      District courts are bound by statutory minimum sentences. United States v.

Gomes, 621 F.3d 1343, 1345 (11th Cir. 2010), cert. denied, 131 S.Ct. 1833 (2011).

The FSA, enacted on August 3, 2010, raised the quantity of crack cocaine

necessary to trigger the 10-year mandatory minimum sentence from 50 grams to

280 grams. Pub. L. No. 111–220, 124 Stat. 2372 (2010), codified at 21 U.S.C.

§ 841(b)(1)(A)(iii). The FSA is not a guidelines amendment by the Sentencing

Commission, but rather a statutory change by Congress. United States v. Berry,

No. 12-11150, slip op. at 4 (11th Cir. Nov. 14, 2012). Thus, the FSA does not

serve as a basis for a § 3582(c)(2) sentence reduction. Id. Regardless, the FSA

does not apply retroactively to a defendant who was sentenced before its effective

date. Id. at 4-5 (agreeing with every other circuit to address the issue that no

evidence suggests that Congress intended the FSA to apply to defendants who

were sentenced prior to August 3, 2010).

      The district court correctly denied Espinal-Torres’s § 3582(c)(2) motion.

Because the sentencing transcript is not included in the record, it is unclear

whether the court applied the range recommended in the PSI (135 to 168 months)

or the range that Espinal-Torres sought (78 to 97 months). In either case,

Espinal-Torres was ineligible for a sentence reduction under § 3582(c)(2). First, if

the court followed the PSI’s recommendation and applied a guideline range of 135

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to 168 months, Amendment 750 may have been applicable to Espinal-Torres’s

case. We nonetheless affirm because, even if the court erroneously denied the

§ 3582(c)(2) motion, any error was harmless. Like the defendant in Jackson,

Espinal-Torres was sentenced to the statutory minimum sentence. See 613 F.3d at

1310 n.7. Because Espinal-Torres committed his offense and was sentenced

before August 3, 2010, the lower statutory minimum sentences of the FSA do not

apply to him. See Berry, No. 12-11150, slip op. at 4-5. Therefore, he could not

have received a lower sentence even if the court had granted his § 3582(c)(2)

motion.

      Alternatively, the court may have applied the range that Espinal-Torres

sought, which was below the statutory minimum sentence of 120 months. Under

this scenario, Espinal-Torres’s guideline range would have become 120 months,

and the court would not have had jurisdiction to consider the § 3582(c)(2) motion.

See Mills, 613 F.3d at 1076, 1078. Thus, regardless of Espinal-Torres’s guideline

range, the district court correctly denied his § 3582(c)(2) motion.

      For the foregoing reasons, we affirm the district court’s denial of

Espinal-Torres’s § 3582(c)(2) motion.

      AFFIRMED.




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