                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 12a1176n.06

                                           No. 12-5182
                                                                                         FILED
                             UNITED STATES COURT OF APPEALS                          Nov 13, 2012
                                  FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )       ON APPEAL FROM THE UNITED
v.                                                   )       STATES DISTRICT COURT FOR
                                                     )       THE WESTERN DISTRICT OF
TAURUS HOLLINS,                                      )       KENTUCKY
                                                     )
       Defendant-Appellant.                          )



       Before: MERRITT, MARTIN, and GILMAN, Circuit Judges.


       PER CURIAM. Taurus Hollins, who is represented by counsel, appeals a district court order

that reduced his sentence under 18 U.S.C. § 3582(c)(2).

       Hollins pleaded guilty to one count of possessing with the intent to distribute crack cocaine.

Because Hollins was responsible for 14.972 grams of crack cocaine, he had an advisory sentencing

guidelines range of seventy-seven to ninety-six months of imprisonment. Hollins, however, was

subject to a statutory minimum sentence of sixty months of imprisonment. See 21 U.S.C.

§ 841(b)(1)(B)(iii) (2008). On June 2, 2008, the district court sentenced Hollins to seventy-seven

months of imprisonment. We affirmed Hollins’s conviction on appeal. See United States v. Hollins,

No. 08-5740 (6th Cir. Feb. 18, 2011) (order).

       In December 2011, following the enactment of the Fair Sentencing Act of 2010 (FSA), Pub.

L. No. 111–120, 124 Stat. 2372, and retroactive amendments to the crack cocaine sentencing

guidelines, Hollins filed a section 3582(c)(2) motion to reduce his sentence. The district court

denied the motion without prejudice and stated that it would review Hollins’s eligibility for a
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sentence reduction under section 3582(c)(2) in accordance with the procedure that it had established

in General Order Number 2011-04. General Order Number 2011-04 sets forth the court’s procedure

for “review[ing] sentences of currently-incarcerated individuals that may be subject to reduction in

accordance with 18 U.S.C. § 3582(c)(2) and the guidance provided in Section 1B1.10 of the

sentencing guidelines.”

       The probation office subsequently filed a memorandum with the district court wherein it

determined that the retroactive amendments to the crack-cocaine guidelines reduced Hollins’s
sentencing guidelines range to fifty-one to sixty-three months of imprisonment. However, because

Hollins was still subject to a statutory minimum sentence of sixty months of imprisonment, his

amended sentencing guidelines range effectively became sixty to sixty-three months of

imprisonment. Hollins objected to the memorandum, arguing that the FSA applied retroactively and

that he was no longer subject to a statutory minimum sentence because his offense involved less than

twenty-eight grams of crack cocaine. See 21 U.S.C. § 841(b)(1)(B)(iii) (2010). The district court

determined that it was without jurisdiction to reduce Hollins’s sentence below the statutory

minimum that was in effect at the time of Hollins’s original sentencing, because section 3582(c)(2)

authorizes courts to reduce sentences only in accordance with subsequently lowered sentencing

guidelines ranges. Accordingly, the district court reduced Hollins’s sentence to sixty months of
imprisonment.

       On appeal, Hollins argues that the district court erred by applying the statutory minimum

because the FSA applies retroactively to defendants who were sentenced prior to the statute’s

enactment, and a sixty month sentence is grossly disproportionate to his crime, in violation of the

Eighth Amendment.

       The district court’s order is reviewed de novo. See United States v. Hameed, 614 F.3d 259,

261–62 (6th Cir. 2010). A reduction in a defendant’s sentence under section 3582(c)(2) is

appropriate only where “a defendant . . . has been sentenced to a term of imprisonment based on a
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                                               -3-

sentencing range that has subsequently been lowered by the Sentencing Commission” and “such a

reduction is consistent with applicable policy statements issued by the Sentencing Commission.”

18 U.S.C. § 3582(c)(2). In determining the extent of a reduction under § 3582(c)(2), the district

court “shall substitute only the [retroactive guideline] amendments . . . for the corresponding

guideline provisions that were applied when the defendant was sentenced and shall leave all other

guideline application decisions unaffected.” USSG § 1B1.10(b)(1). Section 3582(c)(2) has a

“limited scope and purpose,” Dillon v. United States, 130 S. Ct. 2683, 2692 (2010), “does not
authorize a resentencing,” and “permits a sentence reduction within the narrow bounds established

by the [United States Sentencing] Commission.” Id. at 2694.

       Hollins’s sentence was reduced in accordance with the procedures set forth in General Order

Number 2011-04, which addresses guideline reductions under section 3582(c)(2). Hollins did not

receive a new sentencing hearing, and the court’s order granting the reduction shows that the

reduction was granted pursuant to section 3582(c)(2). In reducing Hollins’s sentence under

section 3582(c)(2), the district court properly applied the amended crack-cocaine guidelines and left

all other sentencing determinations, including the application of the sixty-month statutory minimum,

intact. See 18 U.S.C. § 3582(c)(2); USSG § 1B1.10(b)(1); Dillon, 130 S. Ct. at 2692, 2694. The

FSA does not apply to Hollins because he was sentenced prior to the statute’s effective date. See
Dorsey v. United States, 132 S. Ct. 2321, 2335 (2012). Finally, Hollins’s argument that his

mandatory-minimum sentence violates the Eighth Amendment is without merit. See United States

v. Graham, 622 F.3d 445, 452–54 (6th Cir. 2010), cert. denied, 131 S. Ct. 2962 (2011).

       The district court’s judgment is affirmed.
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                                               -4-

       MERRITT, Circuit Judge, concurring. I do not agree that the Fair Sentencing Act is not

retroactive in its application to cases under the old crack guidelines, but our court has held to the

contrary.
