              Case: 12-11224    Date Filed: 05/02/2013    Page: 1 of 11


                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-11224
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 3:02-cr-00035-LC-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

JEAN MICHAEL SANTIAGUE,
a.k.a. Emmanuel Reid,

                                                               Defendant-Appellant.

                           ________________________

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

                                   (May 2, 2013)

Before TJOFLAT, PRYOR and FAY, Circuit Judges.

PER CURIAM:

      Jean Michael Santiague, a federal prisoner proceeding pro se, appeals the

district court’s partial grant of his 18 U.S.C. § 3582(c)(2) motion for a sentence
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reduction and its denial of his post-judgment motion for reconsideration. On

appeal, Santiague argues for the first time that the statutory mandatory minimums

set forth in the Fair Sentencing Act of 2010 (“FSA”) must be applied retroactively,

in conjunction with Amendment 750, in § 3582(c)(2) proceedings. For the reasons

set forth below, we affirm the district court’s partial grant of Santiague’s

§ 3582(c)(2) motion.

                                          I.

      In 2002, Santiague was indicted for possession with intent to distribute 50

grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(iii). The government subsequently filed a notice of intent to seek an

enhanced penalty based on Santiague’s prior drug conviction, pursuant to 21

U.S.C. § 851. Santiague pled guilty to the charged offense.

      The presentence investigation report (“PSI”) held Santiague accountable for

72.5 grams of crack cocaine and, thus, he had a base offense level of 32 pursuant to

§ 2D1.1. After a 4-level increase for obstruction of justice under U.S.S.G.

§ 3C1.1, his total offense level was 34. Based on this offense level and a criminal

history category of VI, Santiague’s guideline range was 262 to 327 months. The

PSI also noted that under 21 U.S.C. § 841(b)(1)(A), Santiague was subject to a

mandatory minimum sentence of 20 years’ (240 months) imprisonment because of

his prior drug conviction. The district court imposed a 327-month sentence.


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       In 2008, after the enactment of Amendment 706, the district court sua sponte

issued an order, pursuant to § 3582(c)(2), reducing Santiague’s sentence to 262

months’ imprisonment. The court noted that Santiague’s base offense level had

been reduced to 32, which lowered his guideline range to 2401 to 262 months.

       In 2011, Santiague, proceeding pro se, filed the instant § 3582(c)(2) motion

to reduce his sentence pursuant to Amendment 750 and the FSA. He asserted that,

in reducing his sentence, the district court should consider the sentencing

disparities between offenses involving powder and crack cocaine. According to

Santiague, Amendment 750 reduced his mandatory minimum sentence to five

years’ imprisonment. He also argued that, in light of the 18 U.S.C § 3553(a)

sentencing factors, his sentence should be reduced to the mandatory minimum

sentence of five years’ imprisonment or time served.

       The district court granted the motion, in part, further reducing Santiague’s

sentence to 240 months’ imprisonment. The court stated that, in reducing his

sentence, it had considered his § 3582(c)(2) motion, the policy considerations set


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         The court’s order stated that Santiague’s amended guideline range was 210 to 262
months’ imprisonment. However, it appears that the order contained a typographical error
regarding the low end of his amended guideline range. As discussed below, in a subsequent
order, the court found that the range was 240 to 262 months’ imprisonment, and it explained that
the mandatory minimum sentence for his offense was 240 months’ imprisonment. See U.S.S.G.
§ 5G1.1(b) (“Where a statutorily required minimum sentence is greater than the maximum of the
applicable guideline range, the statutorily required minimum sentence shall be the guideline
sentence”). Thus, the low end of Santiague’s amendment guideline range could not have been
lower than 240 months.


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forth in U.S.S.G. § 1B1.10, and the § 3553(a) sentencing factors. In its statement

of reasons, the district court noted that Santiague’s base offense level had been

reduced to 28, and his amended guideline range was 240 months’ imprisonment.

Further, the court explained that Santiague’s reduced sentence was the mandatory

minimum required by statute under U.S.S.G. § 5G1.1(b).

      Subsequently, Santiague moved for reconsideration, arguing that the district

court clearly erred in concluding that he had been sentenced to a mandatory

minimum 240-month sentence at his initial sentencing. Further, the court failed to

review and address his arguments regarding his post-sentencing rehabilitation and

the sentencing disparities between powder and crack cocaine offenses. According

to Santiague, his offense carried a mandatory minimum of 10 years’ (120 months)

imprisonment, and he was not given notice pursuant to § 851(a) that his mandatory

minimum sentence would be enhanced to 20 years. Thus, he asserted that the

district court was authorized to reduce his sentence to 120 months’ imprisonment.

      The district court denied Santiague’s motion for reconsideration. The court

noted that, in his plea agreement, Santiague acknowledged that he would be

subject to a 240-month mandatory minimum sentence.

                                         II.

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

its authority under § 3582(c)(2). United States v. Lawson, 686 F.3d 1317, 1319


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(11th Cir.), cert. denied, 133 S. Ct. 568 (2012). However, when an appellant did

not raise an issue before the district court, we review only for plain error. United

States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006). Plain error is: (1) an error;

(2) that is plain; and (3) affects substantial rights; but only if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings. Id.

      Section 3582(c)(2) provides that a court may reduce a defendant’s sentence

where the defendant is 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); U.S.S.G. § 1B1.10(a)(1). Any reduction must be consistent

with applicable policy statements issued by the Sentencing Commission and must

be based on a retroactively applicable guideline amendment listed in § 1B1.10(c).

18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(1) & comment. (backg’d).

According to § 1B1.10, a sentence reduction is unauthorized under § 3582(c)(2)

where it does not have the effect of lowering a defendant’s “applicable guideline

range.” U.S.S.G. § 1B1.10(a)(2)(B). We have explained that “[t]he purpose of

§ 3582(c)(2) is to give a defendant the benefit of a retroactively applicable

amendment to the [G]uidelines. . . But he is not to receive a lower sentence than he

would have received if the amendment had been in effect at the time of his

sentencing.” See Glover, 686 F.3d 1203, 1206 (11th Cir. 2012). Thus, when a

retroactively applicable guidelines amendment lowers the guidelines range in a


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case, a district court usually may not reduce a defendant’s sentence to a term below

the amended guidelines range. See U.S.S.G. § 1B1.10(b)(2)(A) (Nov. 2011).

      Under the Guidelines, where a statutory minimum sentence is greater than

the maximum of the applicable Guideline sentencing range, the statutory minimum

shall be the guideline sentence. U.S.S.G. § 5G1.1(b). Where a statutory minimum

sentence exceeds part, but not all, of the guideline range, the district court may

impose a sentence at any point between the statutory minimum and upper end of

the guideline range. See U.S.S.G. § 5G1.1(c)(2).

      Before the FSA was signed into law on August 3, 2010, distribution of 50

grams or more of crack cocaine triggered the application of a statutory mandatory

minimum sentence of 20 years’ imprisonment, where the defendant had at least

one prior felony drug conviction. 21 U.S.C. § 841(b)(1)(A)(iii) (2009). The FSA

changed the crack-to-powder-cocaine ratio from 100-to-1 to about 18-to-1. Dorsey

v. United States, 567 U.S. ___, 132 2321, 2326, 183 L. Ed. 2d 250 (2012). The

FSA also amended the sentencing provisions in 21 U.S.C. § 841(b)(1)(A) by

raising from 50 grams to 280 grams the amount of crack cocaine necessary to

trigger the 20-year mandatory minimum sentence where a defendant has one prior

felony drug conviction. Fair Sentencing Act of 2010, Pub. L. No. 111–220 § 2(a),

124 Stat. 2372 (2010). Under the FSA, where a defendant has distributed more

than 28 grams of crack cocaine and has one prior drug felony, a mandatory


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minimum sentence of 10 years’ imprisonment applies. See 21 U.S.C.

§ 841(b)(1)(B)(iii). On June 21, 2012, the Supreme Court held in Dorsey that the

FSA’s reduced statutory mandatory minimums apply to defendants who committed

crack cocaine offenses before August 3, 2010, but were sentenced after the date the

FSA went into effect. Dorsey, 567 U.S. at ___, 132 at 2326.

      Amendment 750 to the Sentencing Guidelines, made retroactively applicable

on November 1, 2011, by Amendment 759, makes permanent the temporary

emergency Amendment 748, which lowered the base offense levels for particular

crack cocaine quantities in § 2D1.1(c), pursuant to the FSA. See U.S.S.G. App. C,

Amend. 750, Reason for Amend. and U.S.S.G. App. C, Amend. 759. In Freeman

v. United States, the Supreme Court addressed whether defendants who entered

into Fed. R. Crim. P. 11(c)(1)(C) plea agreements were eligible for § 3582(c)(2)

relief. 564 U.S. ___, ___ 131 2685, 2690, 180 L. Ed. 2d 519 (2011). The Court

held that such a defendant may be eligible for § 3582(c)(2) relief. Id. at ___, 131

at 2695.

      After the parties filed their briefs in the instant appeal, we issued our

decision in United States v. Hippolyte, which addressed whether the FSA applies

retroactively to defendants, like Santiague, who were convicted and sentenced

before its effective date. No. 11-15933, manuscript op. at 14-15 (11th Cir. Mar.

14, 2013). In Hippolyte, the defendant was sentenced in 1996 for an offense


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involving crack cocaine, and his sentence was based on the applicable 240-month

statutory mandatory minimum, which became his guideline sentence under

§ 5G1.1. Id. at 2-3. In 2011, Hippolyte moved for a sentence reduction based on

§ 3582(c)(2) and Amendment 750, and the district court denied the motion because

he had received the statutory minimum sentence for his offenses. Id. On appeal,

Hippolyte argued that the FSA applies in § 3582 proceedings. Id. at 3. In

affirming the district court’s decision, we held that Amendment 750 had no effect

on Hippolyte’s sentence because it did not alter the statutory mandatory minimum

sentence that Hippolyte received. Id. at 14. Further, we relied on United States v.

Berry, 701 F.3d 374 (11th Cir. 2012), holding that, even if Hippolyte could raise a

§ 3582(c)(2) claim, the claim would fail because FSA did not apply retroactively to

his 1996 sentence. Id. at 14–15. We reaffirmed our prior conclusion, in Berry,

that the Supreme Court’s decision in Dorsey did not suggest that the FSA should

apply to defendants who were sentenced long before the FSA’s effective date. Id.

at 14. We explained that, because the FSA did not apply to Hippolyte’s case, the

statutory minimums that applied were the ones that were in place at the time when

he was sentenced in 1996. Id. at 15.

      As an initial matter, Santiague argued before the district court that it

erroneously found that he was subject to a 240-month mandatory minimum during

his original sentencing. However, he fails to mention this argument in his appeal


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brief and, thus, he has abandoned it. See United States v. Gupta, 463 F.3d 1182,

1195 (11th Cir. 2006) (explaining that we “may decline to address an argument

where a party fails to provide arguments on the merits of an issue in its initial or

reply brief”). Further, on appeal, Santiague attempts to adopt portions of the

appellants’ brief in an unrelated appeal, United States v. Loyd, No. 11-16079.

Under our rules, a party is permitted to adopt by reference any part of another

party’s brief by including a statement describing in detail which briefs and which

portions of those briefs are adopted. 11th Cir. R. 28-1(f). Although Santiague has

provided a copy of the portions of the brief that he intends to adopt, the appellants

in Loyd are not parties in the instant appeal and some of the adopted arguments are

not relevant. Regardless, as discussed below, even if Santiague is permitted to

adopt the arguments from the brief in Loyd, he is not entitled to relief.

      Furthermore, Santiague argues for the first time on appeal that the statutory

mandatory minimums set forth in the FSA must be applied retroactively, in

conjunction with Amendment 750, in § 3582(c)(2) proceedings. In the district

court, he argued only that Amendment 750 reduced his applicable guideline range

and that, in reducing his sentence, the court should consider the § 3552(a) factors

and the sentencing disparities between crack and powder cocaine offenses. As

such, we review his instant arguments related to the FSA only for plain error. See

Massey, 443 F.3d at 818.


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      The district court did not commit error, plain or otherwise, in declining to

reduce Santiague’s sentence below the statutory minimum 240-month sentence that

was applicable at the time of his original sentencing. Here, the district court

acknowledged that Amendment 750 reduced Santiague’s guideline range, and it

correctly determined that, pursuant to § 5G1.1(c)(2), his amended guideline range

became the mandatory minimum of 240 months. See U.S.S.G § 5G1.1(c)(2).

Contrary to Santiague’s assertion, Amendment 750 did not authorize the district

court to reduce his sentence below the statutory mandatory minimum that was in

effect at the time of his sentencing. See Glover, 686 F.3d at 1206; U.S.S.G.

§ 1B1.10(b)(2)(A) (Nov. 2011). Further, Santiague’s reliance on Freeman is

misplaced, as that case did not address whether a district court is authorized to

sentence a defendant below the applicable mandatory minimum under

§ 3582(c)(2). See Freeman, 564 U.S. ___, 131 at 2690, 2695.

      Next, as to Santiague’s argument that he is eligible for a § 3582(c)(2)

reduction based on the FSA, his argument is foreclosed by our recent decision in

Hippolyte. Even assuming that he could raise his FSA claim in a § 3582(c)(2)

motion, his claim fails because he was sentenced in 2002, before the August 3,

2010, effective date of the FSA, and, therefore, he cannot benefit from the FSA’s

lower statutory mandatory minimum provisions. See Hippolyte, manuscript op. at

14-15. Contrary to Santiague’s assertion on appeal, Dorsey did not suggest that the


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FSA’s new statutory penalties should apply to defendants who were sentenced

before the FSA’s effective date. See Hippolyte, manuscript op. at 14-15 (providing

that Dorsey did not suggest that the FSA’s new mandatory minimums should apply

to defendants “who were sentenced long before the FSA’s effective date”) (quoting

Berry, 107 F.3d at 377).

      For the foregoing reasons, we affirm the district court’s partial grant of

Santiague’s § 3582(c)(2) motion and its denial of his motion for reconsideration.

      AFFIRMED.




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