           Case: 13-12569     Date Filed: 11/07/2013   Page: 1 of 4


                                                          [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-12569
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:08-cr-20896-MGC-3


UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                    versus

KEVIN STEWART,
a.k.a. Doodoo,

                                                           Defendant-Appellant.
                            ________________________

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

                             (November 7, 2013)

Before PRYOR, MARTIN and BLACK, Circuit Judges.

PER CURIAM:
                Case: 13-12569       Date Filed: 11/07/2013       Page: 2 of 4


       Kevin Stewart appeals the district court’s denial of his motion for a sentence

reduction pursuant to 18 U.S.C. § 3582(c)(2). In 2009, Stewart was sentenced to

120 months’ imprisonment for conspiracy to distribute cocaine base in excess of

50 grams, in violation of 21 U.S.C. §§ 841(a)(1) and 846 and possession of a

firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On appeal,

Stewart argues the Fair Sentencing Act (FSA) enacted August 3, 2010, also known

as Amendment 750 to the Sentencing Guidelines, requires a sentence reduction

because the FSA lowers Stewart’s applicable Guidelines range. He also argues that

not reducing his sentence under the FSA is an Equal Protection violation. After

review, 1 we affirm.

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

defendant who was sentenced based on a Guidelines range that has subsequently

been lowered by the Sentencing Commission. 18 U.S.C. § 3582. The amendment

must “have the effect of lowering the defendant’s applicable guideline range.”

U.S.S.G. § 1B1.10(a)(2)(B). However, when a defendant’s sentence was based on

a mandatory minimum sentence, a future change to the statutory mandatory

minimum sentence does not apply retroactively. United States v. Hippolyte, 712

F.3d 535, 542 (11th Cir. 2013).

       1
         We review for an abuse of discretion whether the district court’s decision to reduce a
sentence pursuant to 18 U.S.C. § 3582(c)(2) was proper. United States v. White, 305 F.3d 1264,
1267 (11th Cir. 2002). We review de novo the district court’s legal conclusions regarding the
scope of its authority under § 3582(c)(2). Id.
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       At the time of Stewart’s guilty plea, his applicable Guideline range was 140-

175 months with a mandatory minimum sentence of 120 months. The district

judge, after weighing the 18 U.S.C. § 3553(a) factors, decided to vary downward

as much as possible and imposed the mandatory minimum sentence. Therefore,

Stewart is ineligible2 for a sentence reduction because the district court based his

sentence on the mandatory minimum.

       Stewart’s argument that failing to apply the FSA retroactively to defendants

sentenced before its effective date violates the Equal Protection Clause is

foreclosed by our precedent. See United States v. Hanna, 153 F.3d 1286,1288-89

(11th Cir. 1998); United States v. Byse, 28 F.3d 1165, 1170 (11th Cir. 1994);

United States v. Sorondo, 845 F.2d 945, 947-48 (11th Cir. 1988). 3 Additionally,

the Supreme Court’s decision in Dorsey does not support Stewart’s equal

protection argument because that decision does not address either equal protection

       2
         Stewart’s challenge also fails because a change to the applicable Guidelines range such
as Amendment 750, which was promulgated by Congress, is outside the scope of § 3582(c)(2)
because it was not a change made by the Sentencing Commission. See United States v. Berry,
701 F.3d 374, 377 (11th Cir. 2011). Since these changes were effectuated by Congress and not
the Sentencing Commission, § 3582(c)(2) is inapplicable to Stewart’s case. Berry, 701 F.3d at
377. Moreover, Amendment 750, which was made to apply retroactively by Amendment 759,
only applies to defendants sentenced after the enactment of the FSA. See Dorsey v. United
States, 132 S. Ct. 2321, 2326 (2012); see also United States v. Hippolyte, 712 F.3d 535, 542
(11th Cir. 2013). Hence, Stewart is ineligible for a sentence reduction because Amendment 750
does not apply retroactively in his case. See Berry 701 F.3d at 377; Hippolyte 712 F.3d at 542;
see also Dorsey, 132 S. Ct. at 2326.
       3
         Stewart’s citation to the Sixth Circuit’s contrary holding in United States v. Blewett, 719
F.3d 482 (6th Cir. 2013), reh’g en banc granted and opinion vacated, (6th Cir. July 11, 2013),
does not change the binding nature of our decisions. See United States v. Lawson, 686 F.3d
1317, 1319 (11th Cir. 2012).
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or defendants sentenced before the FSA’s enactment. See generally Dorsey v.

United States, 132 S. Ct. 2321 (2012).

      The district court did not abuse its discretion in denying Stewart’s motion

for a sentence reduction.

      AFFIRMED.




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