             Case: 12-15421   Date Filed: 03/07/2014   Page: 1 of 6


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 12-15421
                          Non-Argument Calendar
                        ________________________

                   D. C. Docket No. 1:09-cr-00189-CB-M-1

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

JAMES FITZGERALD PREVO,

                                                           Defendant-Appellant.
                        ________________________

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

                               (March 7, 2014)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

     James Prevo, proceeding pro se, appeals the district court’s denial of his

motion for a sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2) and

Amendment 750 to the Sentencing Guidelines. The district court denied Prevo’s
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motion because it found that he was ineligible for a reduction in sentence as he was

serving a statutory mandatory-minimum sentence.

      On appeal, Prevo argues that the district court abused its discretion by

denying his § 3582(c)(2) motion because the Fair Sentencing Act (“FSA”), Pub. L.

No. 111-220, 124 Stat. 2372 (2010), lowered his mandatory-minimum sentence to

five years. Prevo relies on Dorsey v. United States, 567 U.S. ___, ___, 132 S.Ct.

2321, 2326, 183 L.Ed.2d 250 (2012), and states that the Supreme Court’s

reasoning in Dorsey indicates that the FSA applies to a § 3582(c)(2) proceeding

brought by a defendant sentenced prior to the FSA’s effective date. He also

contends that the district court incorrectly believed his mandatory-minimum

sentence was ten years instead of five years. Relying on Alleyne v. United States,

570 U.S. ___, 133 S.Ct. 2851, 186 L.Ed2d 314 (2013), Prevo argues that his

sentence is in violation of the Fifth and Sixth Amendments because he was

sentenced for conduct that was not charged in the indictment or provided for in the

plea agreement. The government has responded with a “Motion for Summary

Affirmance and to Stay Briefing Schedule.”

      Summary disposition is appropriate either where time is of the essence, such

as “situations where important public policy issues are involved or those where

rights delayed are rights denied,” or where “the position of one of the parties is

clearly right as a matter of law so that there can be no substantial question as to the


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outcome of the case, or where, as is more frequently the case, the appeal is

frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969);

see United States v. Martinez, 407 F.3d 1170, 1173-74 (11th Cir. 2005) (construing

the defendant’s “unconventional” motion as a motion for summary reversal,

granting the motion, vacating the defendant’s sentence, and remanding the case for

resentencing where the district court had committed plain error by treating the

Sentencing Guidelines as mandatory).

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

of its authority under § 3582(c)(2). United States v. Berry, 701 F.3d 374, 376 n.1

(11th Cir. 2012).

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

defendant who 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). Section 3582(c)(2) does not authorize a

reduction in sentence where a retroactive amendment to the Guidelines reduces a

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

his sentence was based. Berry, 701 F.3d at 376. The Supreme Court has held that

explained that § 3582(c)(2) proceedings have a limited scope and purpose, and that

the proceedings are “not constitutionally compelled,” but instead represent a

“congressional act of lenity. Dillon v. United States, 560 U.S. 817, ___, 130 S.Ct.


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2683, 2691-92, 177 L.Ed.2d 271 (2010); see also United States v. Bravo, 203 F.3d

778, 781-82 (11th Cir. 2000) (holding that constitutional claims are “extraneous

resentencing issues” that a court cannot address during a § 3582(c)(2) proceeding,

and that a defendant is entitled to raise constitutional challenges to a sentence by

making a collateral attack under 28 U.S.C. § 2255).

      Amendment 750 retroactively lowered the sentencing range applicable to

crack cocaine offenses by revising the crack cocaine quantity tables listed in

U.S.S.G. § 2D1.1(c).      U.S.S.G. App. C, amend. 750 (2011).            Following

Amendment 750, a defendant responsible for at least 28 grams, but less than 112

grams, of cocaine base has a base offense level of 26. U.S.S.G. § 2D1.1(c)(7).

The FSA reduced the mandatory-minimum penalties for crack cocaine offenses in

§ 841(b) as to offenders who committed crack cocaine offenses before its August

3, 2010, effective date, but who were not sentenced until after that date. Dorsey,

567 U.S. at ___, 132 S.Ct. at 2326; Berry, 701 F.3d at 377. Following the FSA, a

defendant who commits an offense involving 28 grams or more of cocaine base

after a prior conviction for a felony drug offense is subject to a mandatory

minimum sentence of ten years, and a maximum sentence of life imprisonment. 21

U.S.C. § 841(b)(1)(B).    The Guidelines provide that a court may sentence a

defendant anywhere within the applicable guideline range except that the sentence

imposed must not be less than the statutorily required minimum sentence.


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U.S.S.G. § 5G1.1(c)(2). Thus, if a defendant’s sentence is based on a § 841(b)

mandatory minimum that is above the applicable guideline range, Amendment 750

does not lower the defendant’s guideline range and the defendant is not eligible for

a § 3582(c)(2) reduction. Berry, 701 F.3d at 376.

      Here, Prevo was sentenced after the FSA’s effective date for an offense

committed prior to the FSA’s effective date, and, thus, he was subject to the FSA’s

reduced statutory penalties for crack cocaine offenders. See Dorsey, 567 U.S. at

___, 132 S.Ct. at 2326. At sentencing, the district court correctly determined that

Prevo was subject to an enhanced 10-year statutory minimum in § 841(b)(1)(B)

under the provisions of the FSA because his offense involved more than 28 grams

of cocaine base and he had several prior felony convictions for drug offenses.

Although Amendment 750 reduces Prevo’s § 2D1.1 offense level, it does not

reduce his advisory guideline range below the statutory mandatory minimum. See

U.S.S.G. § 5G1.1(c)(2). Thus, because Prevo is serving a mandatory-minimum

sentence, the district court correctly denied his § 3582(c)(2) motion, as

Amendment 750 did not have the effect of lowering his guideline range. See 18

U.S.C. § 3582(c)(2).

      Prevo’s arguments regarding the application of the FSA to his § 3582(c)(2)

proceedings are meritless because the district court at sentencing used the FSA to

determine his statutory penalties, and, thus, he was sentenced pursuant to the FSA.


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Likewise, the government correctly notes that Prevo mistakenly believes his

statutory sentencing range was 5 to 40 years under § 841(b)(1)(B), as he failed to

account for the § 851 enhancement that was filed during his criminal proceedings.

Additionally, Prevo’s argument based on Alleyne does not provide any basis for

§ 3582(c)(2) relief because a district court may not consider extraneous

constitutional challenges to a sentence during a § 3582(c)(2) proceeding. See

Dillon, 560 U.S. at ___, 130 S.Ct. at 2691-92; Bravo, 203 F.3d at 781-82.

      Accordingly, the government’s motion for summary affirmance is

GRANTED, the judgment of the district court is AFFIRMED, and the

government’s motion to stay the briefing schedule is DENIED as moot.




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