                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a1106n.06

                                          No. 12-5054                                  FILED
                                                                                     Oct 25, 2012
                             UNITED STATES COURT OF APPEALS                  DEBORAH S. HUNT, Clerk
                                  FOR THE SIXTH CIRCUIT

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



       Before: MARTIN and WHITE, Circuit Judges; ECONOMUS, District Judge.*


       PER CURIAM. Vickie Sue Passmore, a federal prisoner, appeals the district court’s order

denying her motion for a reduction of sentence filed under 18 U.S.C. § 3582(c)(2).

       On January 19, 2011, pursuant to a plea agreement, Passmore pleaded guilty to conspiracy

to possess with the intent to distribute and distribution of cocaine base in violation of 21 U.S.C.

§ 846 and 21 U.S.C. § 841(b)(1)(A). A presentence report calculated Passmore’s total offense level

as twenty-three and her criminal history category as IV, resulting in an advisory sentencing

guidelines range of seventy to eighty-seven months of imprisonment. Because Passmore’s offense

carried a mandatory minimum sentence of 120 months of imprisonment, the applicable sentencing

guidelines range became 120 months. The government filed motions pursuant to 18 U.S.C.

§ 3553(e) and USSG § 5K1.1 requesting that the court sentence Passmore below the mandatory




       *
         The Honorable Peter C. Economus, United States Senior District Judge for the Northern
District of Ohio, sitting by designation.
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minimum level based on her cooperation. On July 6, 2011, the district court imposed a term of

eighteen months of imprisonment, to be followed by five years of supervised release.

       Prior to Passmore’s guilty plea, Congress enacted the Fair Sentencing Act of 2010, Pub. L.

No. 11–220, 124 Stat. 2372, which increased the amount of cocaine base necessary to trigger a

mandatory minimum ten year sentence. On November 1, 2010, the Sentencing Commission

amended the guidelines and realigned the base offense levels to conform to this revised statutory

penalty. See USSG App. C, Amend. 750. Those amendments were made retroactive on November

1, 2011. See id., Amend. 759.

       Upon its own motion, the district court requested that the Probation Office analyze the effect

of the Act’s amendments to determine whether Passmore would be eligible for a reduction of

sentence, pursuant to section 3582(c)(2). The district court determined that because Passmore was

sentenced after the August 3, 2010 enactment of the Act, the lower mandatory minimum term should

be applied and that Passmore’s mandatory minimum term of imprisonment should be reduced from

120 months to sixty months. However, the court concluded that the advisory sentencing guidelines

range would remain unchanged. After considering the sentencing factors, the district court

determined that Passmore’s sentence should be reduced from eighteen to ten months of

imprisonment.

       The government objected to the reduction and filed a motion to dismiss Passmore’s section

3582(c)(2) motion for lack of jurisdiction. The government argued that a sentence may be reduced

under section 3582(c)(2) only when a defendant’s sentencing range has subsequently been lowered

by the Sentencing Commission, not when Congress establishes a new mandatory minimum sentence.

Passmore filed a response, arguing that the change in the mandatory minimum sentence was a change

in the applicable guidelines range and that she was eligible for a reduction. After consideration, the

district court concluded that it had no authority to reduce Passmore’s sentence under section
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                                                 -3-

3582(c)(2) based on the changed mandatory minimum sentence. The district court therefore denied

the motion to reduce sentence.

        We review a district court’s decision to grant or deny a motion to modify a sentence under

section 3582(c)(2) for an abuse of discretion. United States v. Payton, 617 F.3d 911, 912 (6th Cir.

2010). When a district court “‘concludes that it lacks the authority to reduce a defendant’s sentence

under the statute, the district court’s determination that the defendant is ineligible . . . is a question

of law that is reviewed de novo.’” Id. at 913 (quoting United States v. Curry, 606 F.3d 323, 327 (6th

Cir. 2010)).

        A sentence may be reduced under section 3582(c)(2) “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” as a result of a retroactive amendment. 18 U.S.C.

§ 3582(c)(2); USSG § 1B1.10(a)(1). When modifying a sentence, the district court should substitute

only the retroactive amendment, and then leave all original sentencing determinations in place. See

Freeman v. United States, 131 S. Ct. 2685, 2692 (2011) (citing § 1B1.10(b)(1)). In this case, no

retroactive amendment affected the calculation of Passmore’s sentence and there was no basis upon

which the district court could reduce her sentence under section 3582(c)(2). Therefore, the district

court did not err in denying Passmore’s section 3582(c)(2) motion for lack of jurisdiction.

        We note that the Supreme Court recently held, in the context of a direct appeal, that the lower

mandatory minimums of the Act apply to offenders who committed their offenses prior to the August

3, 2010 effective date of the Act, but who were sentenced after the effective date. Dorsey v. United

States, 132 S. Ct. 2321, 2326 (2012). Passmore’s offense occurred between July 2007 and May 22,

2009; she was sentenced on July 6, 2011. Accordingly, she is subject to the lower mandatory

minimums. We may not grant Passmore relief under section 3582(c)(2), however, because her

sentencing range has not “subsequently been lowered” since the time she was sentenced. See 18
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                                              -4-

U.S.C. § 3582(c)(2). Nevertheless, our decision is not intended to limit Passmore’s ability to

challenge her sentence under 28 U.S.C. § 2255.

       We affirm the district court’s order.
