           Case: 13-11401    Date Filed: 09/19/2013   Page: 1 of 6


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-11401
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 3:05-cr-00371-HES-MCR-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

BRIAN LEON GRIER,
a.k.a. Blade

                                                          Defendant-Appellant.

                      ________________________

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

                            (September 19, 2013)

Before DUBINA, MARCUS and MARTIN, Circuit Judges.

PER CURIAM:
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      Appellant Brian Leon Grier, a federal prisoner, appeals from the district

court’s denial of his motion to reduce his sentence, filed pursuant to 18 U.S.C.

§ 3582(c)(2), based on the Fair Sentencing Act (“FSA”) as well as Amendment

750 to the Sentencing Guidelines. In 2006, Grier pleaded guilty, without the

benefit of a written plea agreement, to distribution of cocaine base, in violation of

21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count One); possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count

Two); and distribution of five grams or more of cocaine base, in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(B) (Count Three). Count Three carried a statutory

mandatory minimum penalty of five years’ imprisonment. Count Two also carried

a five-year minimum prison sentence, to run consecutively to any other sentence

imposed. The district court sentenced Grier to a total of 130 months’

imprisonment as follows: as to Counts One and Three, 70 months’ imprisonment

each, to run concurrently with one another; and as to Count Two, 60 months’

imprisonment, to run consecutively to the sentence imposed for Counts One and

Three.

      In 2008, Grier filed a motion to reduce his sentence under § 3582(c)(2)

based on Amendment 706 to the Sentencing Guidelines. The district court

reduced, by 10 months, Grier’s sentence as to Counts One and Three, which

resulted in 60 months’ imprisonment, the statutory minimum for Count Three.


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      The district court denied Grier’s second § 3582(c)(2) motion to reduce his

sentence based on Amendment 750 and the FSA, and it is the denial of that motion

from which Grier now appeals. On appeal, Grier argues that (1) the FSA, in

conjunction with Amendment 750, should be applied retroactively to reduce his

sentence, and (2) his original sentence was “based on” a sentencing range that was

subsequently lowered by the Sentencing Commission (his previous sentence

reduction notwithstanding).

      We review de novo a district court’s legal conclusions about the Sentencing

Guidelines and the scope of its authority under § 3582(c)(2). United States v.

Liberse, 688 F.3d 1198, 1200 n.1 (11th Cir. 2012). A district court may modify a

term of imprisonment that was “based on a sentencing range that has subsequently

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

reduction, however, must be “consistent with applicable policy statements issued

by the Sentencing Commission.” Id. The applicable policy statement, found in

U.S.S.G. § 1B1.10, provides that “[a] reduction in the defendant’s term of

imprisonment . . . is not authorized under 18 U.S.C. § 3582(c)(2) if . . . [the]

amendment . . . does not have the effect of lowering the defendant’s applicable

guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). The commentary to the 2011

version of the Guidelines defines “applicable guideline range” as the “range that

corresponds to the offense level and criminal history category.” Id. § 1B1.10,


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comment. (n.1(A)). The commentary further provides that a § 3582(c)(2) sentence

reduction is not authorized and not consistent with § 1B1.10(a)(2)(B) where “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).” Id.

      Amendment 750 to the Sentencing Guidelines amended the drug quantity

table in § 2D1.1(c) to reduce offense levels in crack cocaine cases. See U.S.S.G.

App. C, Amend. 750. It was made retroactive by Amendment 759, effective

November 1, 2011. See id., Amend. 759.

      We recently held that the FSA may not be used to reduce a sentence

pursuant to a § 3582 motion because it was a congressional statutory change and

not a guidelines amendment issued by the Sentencing Commission. See United

States v. Berry, 701 F.3d 374, 377 (11th Cir. 2012). Further, interpreting the

general savings clause, 1 U.S.C. § 109, we also stated that the FSA has not been

made retroactively applicable to sentences imposed before its 2010 enactment. Id.;

see also Dorsey v. United States, 567 U.S. ___, ___, 132 S.Ct. 2321, 2326 (2012)

(holding that the FSA’s reduced statutory mandatory minimums apply to

defendants who committed crack cocaine offenses before August 3, 2010, but were

sentenced after the date the FSA went into effect).




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      In Hippolyte, we also recently held that the district court properly denied the

defendant’s § 3582(c)(2) motion where the defendant was subject to a mandatory

minimum sentence for a pre-FSA offense involving cocaine base. United States v.

Hippolyte, 712 F.3d 535, 540-42 (11th Cir. 2013), petition for cert. filed, (U.S.

June 12, 2013) (No. 12-10828). Noting that the FSA did not apply retroactively,

we explained that the defendant’s guideline range was the statutory minimum at

the time of his sentencing, and thus Amendment 750 did not lower his guideline

range. Id. at 541-42.

      We conclude from the record that the district court properly denied Grier’s

motion for a sentence reduction. Grier’s argument that the FSA authorizes the

district court to reduce his sentence is foreclosed by our decision in Berry, where

we explained that the FSA is not an amendment to the Guidelines authorized by

the Sentencing Commission, and thus, it cannot serve as a basis for a § 3582(c)(2)

sentence reduction in Grier’s case. See Berry, 701 F.3d at 377. Moreover,

Amendment 750 would not lower Grier’s applicable guideline range because

(1) Grier’s sentence as to Count Three was already reduced to the pre-FSA

statutory minimum; and (2) the FSA does not apply retroactively to defendants

such as Grier who were sentenced before the FSA’s effective date. See U.S.S.G.

§ 1B1.10, comment. (n.1(A)); Berry, 701 F.3d at 377. Accordingly, we affirm the

district court’s order denying Grier’s § 3582(c)(2) motion for a sentence reduction.


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AFFIRMED.




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