                 Case: 13-13550    Date Filed: 02/14/2014    Page: 1 of 7


                                                             [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 13-13550
                               Non-Argument Calendar
                             ________________________

                      D.C. Docket No. 8:03-cr-00343-JSM-EAJ-3



UNITED STATES OF AMERICA,

                                                             Plaintiff - Appellee,
versus

GEORGE PEARSON, JR.,

                                                             Defendant - Appellant.

                             ________________________

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

                                   (February 14, 2014)

Before CARNES, Chief Judge, TJOFLAT and FAY, Circuit Judges.

PER CURIAM:

         George Pearson Jr., proceeding pro se, appeals the district court’s denial of

his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). He contends
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that the Fair Sentencing Act (FSA) should be applied retroactively to reduce his

sentence and that failing to do so would violate the Equal Protection Clause.


                                          I.

      Pearson pleaded guilty in 2003 to multiple offenses related to the possession

and distribution of crack cocaine. Because he had a prior felony drug conviction,

the district court imposed the mandatory minimum sentence of twenty years

imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A)(viii). That sentence was

greater than what the recommended guidelines range would have been had it

applied.

      In 2008, the United States Sentencing Commission promulgated

Amendment 706, which lowered the base offense level for many crack cocaine

offenses. The district court sua sponte ordered the parties to address whether

Pearson was eligible for a reduction in his sentence under 18 U.S.C. § 3582(c)(2),

but it ultimately determined that he was not because his sentence was imposed

pursuant to a mandatory statutory minimum, and Amendment 706 did not actually

lower his guidelines range. Pearson appealed that denial and his counsel filed a

motion to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396

(1967). This Court granted counsel’s motion to withdraw, finding “no arguable

issue of merit” for appeal, and affirmed the district court’s denial of the sentence

reduction. United States v. Pearson, 361 F. App’x 66 (11th Cir. 2010).

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      Pearson again sought a reduction in his sentence in 2010. Proceeding pro se,

he filed a § 3582(c)(2) motion to reduce his sentence based on the FSA, which

reduced the amount of crack cocaine sufficient to trigger the mandatory statutory

penalties under 21 U.S.C. § 841(b)(1)(A). Pearson argued that the district court

should retroactively apply the FSA to his sentence because failing to do so would

violate the Equal Protection Clause. The district court denied Pearson’s motion,

concluding that the FSA did not apply retroactively to crimes committed before it

came into effect. Pearson did not appeal.

      Pearson’s third attempt to have his sentence reduced, which is the basis of

this appeal, came in June 2013, when he filed another § 3582(c)(2) motion. In that

motion, Pearson again argued for the retroactive application of the FSA to his

sentence on equal protection grounds. He cited Amendment 750 to the United

States Sentencing Guidelines, which revised the crack cocaine quantity tables to

implement the FSA’s directives. See U.S.S.G. App. C, amend. 750 (Nov. 2011).

And he asked the district court to “overlook” his mandatory minimum sentence

and instead impose a sentence of 87 months based on what the guidelines range

would have been if it had applied. The district court denied the motion. It

concluded that the FSA did not apply retroactively to Pearson’s sentence, which

was handed down in 2004, and that he was therefore not entitled to relief under




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§ 3582(c)(2). Pearson appealed, and the government responded with a motion for

summary affirmance and a stay of the briefing schedule.

                                              II.

       We review a district court’s denial of a motion for a sentence reduction

pursuant to § 3582(c)(2) for abuse of discretion. United States v. Webb, 565 F.3d

789, 792 (11th Cir. 2008). However, we apply de novo review to the district

court’s legal conclusions regarding the scope of its authority under § 3582(c)(2).

United States v. Lawson, 686 F.3d 1317, 1319 (11th Cir. 2012). Because Pearson

is proceeding pro se, we construe his pleadings liberally. Webb, 565 F.3d at 792.

       Summary disposition is appropriate 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 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). 1

                                             III.

       The sole argument advanced by Pearson on appeal is that the district court

violated the Equal Protection Clause by refusing to apply the FSA retroactively to

his sentence. He notes that, of the 30,000 prisoners serving crack cocaine

       1
        In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Firth Circuit handed down before
October 1, 1981.


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sentences, 17,000 of them are ineligible for a § 3582(c)(2) reduction because they

are serving mandatory minimum or career offender sentences. Because some

people perceived the pre-FSA version of 21 U.S.C. § 841(b)(1) to be racially

discriminatory, 2 Pearson argues, the sentences imposed pursuant to it are

unconstitutional and his sentence should be reduced under § 3582(c)(2). We reject

Pearson’s argument for several reasons.

       Section 3582(c)(2) empowers a district court to modify a term of

imprisonment only “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). Where a defendant such as

Pearson is sentenced on the basis of a statutory minimum, and not the sentencing

guidelines, “[t]he law is clear that a sentencing court lacks jurisdiction to consider

a § 3582(c)(2) motion.” United States v. Glover, 686 F.3d 1203, 1206 (11th Cir.

2012) (citing United States v. Mills, 613 F.3d 1070, 1078 (11th Cir. 2010))

(alteration in original). Furthermore, constitutional claims like the one at issue

here are “extraneous resentencing issues” that a court lacks jurisdiction to address

during a § 3582(c)(2) proceeding. United States v. Bravo, 203 F.3d 778, 782 (11th

       2
         Section 841(b)(1) is the statute under which Pearson was sentenced. Before the
passage of the FSA, there was a large disparity between the amount of crack cocaine and powder
cocaine needed to trigger mandatory statutory penalties. See Dorsey v. United States, 132 S.Ct.
2321, 2327 (2012). In a 2002 report, the Sentencing Commission recommended reducing that
sentencing disparity in part because of a “‘widely-held perception’” that it disproportionately
punished black offenders. Kimbrough v. United States, 552 U.S. 85, 98, 128 S.Ct. 558, 568
(2007).
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Cir. 2000). In short, a § 3582(c)(2) motion is not the proper procedural vehicle for

Pearson’s claim. Such a constitutional challenge should be brought under 28

U.S.C. § 2255, see id., although the time for filing one has long since passed.

      Second, this Court’s precedent forecloses Pearson’s argument that he is

entitled to a sentence reduction on the ground that the FSA applies retroactively to

a defendant serving a mandatory minimum sentence. In United States v. Berry, we

held that the FSA does not apply retroactively to sentences imposed before its 2010

effective date. 701 F.3d 374, 377 (11th Cir. 2012) (“We agree with every other

circuit to address the issue that there is no evidence that Congress intended [the

FSA] to apply to defendants who had been sentenced prior to the August 3, 2010

date of the Act’s enactment.”) (alteration in original) (quotation marks omitted)

(citing decisions); see also United States v. Hippolyte, 712 F.3d 535, 542 (11th Cir.

2013) (holding that a defendant who had been sentenced to a pre-FSA statutory

minimum was not eligible for a § 3582(c)(2) sentence reduction based on

Amendment 750 because “the FSA does not apply retroactively to his 1996

sentence.”). Pearson was sentenced in 2004, which is six years before the FSA

was enacted.




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                                      IV.

      For these reasons, the government’s motion for summary affirmance is

GRANTED and the judgment of the district court is AFFIRMED. The

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




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