           Case: 15-12869   Date Filed: 04/12/2016   Page: 1 of 3


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-12869
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 9:08-cr-80034-DTKH-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

JAMES THOMAS WITHROW,

                                                         Defendant-Appellant.

                      ________________________

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

                             (April 12, 2016)

Before WILSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
                Case: 15-12869       Date Filed: 04/12/2016       Page: 2 of 3


       James Thomas Withrow, a federal prisoner, appeals the district court’s

partial denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction. In

2009, Withrow was convicted and sentenced for conspiring with intent to distribute

around 70 grams of crack cocaine, in violation of 21 U.S.C. § 846. He was

sentenced to a term of imprisonment above the statutory mandatory minimum for

his offense, which at that time was 120 months’ imprisonment under 21 U.S.C. §

841(b)(1). In 2010, the Fair Sentencing Act (FSA) decreased the statutory

mandatory minimum for offenses like Withrow’s to 60 months’ imprisonment.

See Pub.L. No. 111–220, 124 Stat. 2372; 21 U.S.C. § 841(b)(1). Subsequently,

Withrow filed his present motion for a sentence reduction, seeking relief based on

Amendment 782 to the Sentencing Guidelines. The district court found Withrow

eligible for relief under Amendment 782, but the court concluded that it could not

lower his sentence below the relevant statutory mandatory minimum on a § 3582

motion.1 Finding that the pre-FSA 120-month minimum applies to Withrow, the

court only reduced his sentence to 120 months’ imprisonment.

       On appeal, Withrow solely asserts that the district court erred by relying on

the 120-month statutory mandatory minimum rather than the 60-month minimum

currently in effect. However, this argument is unavailing. The FSA does not apply

       1
        This determination was proper—§ 3582 does not authorize courts to reduce a
defendant’s sentence below the applicable statutory mandatory minimum prison term. See
United States v. Hippolyte, 712 F.3d 535, 540 (11th Cir. 2013); United States v. Berry, 701 F.3d
374, 376 (11th Cir. 2012) (per curiam).
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retroactively to Withrow. See Hippolyte, 712 F.3d at 542; Berry, 701 F.3d at 377.

Because the FSA does not apply to Withrow’s case, the statutory mandatory

minimum that does is the one that was in place when Withrow was sentenced in

2009. See Hippolyte, 712 F.3d at 542. Accordingly, the district court did not err in

relying on the 120-month minimum when considering Withrow’s § 3582 motion.

      AFFIRMED.




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