            Case: 12-11415    Date Filed: 04/12/2013   Page: 1 of 7


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________

                               No. 12-11415
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 8:07-cr-00366-RAL-EAJ-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

WENDALL JAMES MARTIN,
a.k.a. L.J.,

                                                           Defendant-Appellant.

                        ________________________

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

                               (April 12, 2013)

Before DUBINA, Chief Judge, MARTIN and FAY, Circuit Judges.

PER CURIAM:

     Appellant Wendall James Martin appeals the district court’s sua sponte
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denial of a sentence reduction under 18 U.S.C. § 3582(c)(2), based on

Amendments 750 and 759. On appeal, he argues that the district court intended to

sentence him based on the guideline range, not the applicable statutory mandatory

minimum. As a result, Martin caims that he is entitled to § 3582(c)(2) relief

because the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372

(“FSA”), lowered his guideline range. Alternatively, he argues that the FSA

applies to him retroactively, and the applicable mandatory minimum, under the

FSA, is now five years instead of ten years.

      We review for abuse of discretion a district court’s denial of a defendant’s

§ 3582(c)(2) motion to reduce sentence. United States v. Mills, 613 F.3d 1070,

1074-75 (11th Cir. 2010). If the issue below involved a legal interpretation, we

review de novo. United States v. Williams, 549 F.3d 1337, 1338-39 (11th Cir.

2008).

      A district court may modify a term of imprisonment if a defendant was

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). If that sentence was based on something other than offense level

calculations, however, a guideline amendment would not impact his sentence, and

he would be ineligible for relief under § 3582(c)(2). Mills, 613 F.3d at 1076.

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Specifically, if the defendant’s conduct triggered a statutory mandatory minimum,

the district court based his sentence on that minimum, not his guideline range.

This is true even if the government moved based on U.S.S.G. § 5K1.1 and 18

U.S.C. § 3553(e) for a sentence below the statutory mandatory minimum. See

Williams, 549 F.3d at 1340. This is because “[a]ny downward departure would . .

. be from the mandatory minimum rather than from the base offense level.” Id.

      The FSA, which took effect on August 3, 2010, “increased the drug amounts

triggering mandatory minimums for crack trafficking offenses from 5 grams to 28

grams in respect to the 5-year minimum and from 50 grams to 280 grams in

respect to the 10-year minimum.” Dorsey v. United States, 567 U.S. ___, ___, 132

S.Ct. 2321, 2329, 183 L.Ed.2d 250 (2012); see 21 U.S.C. § 841. It also

“instructed the Commission to ‘make such conforming amendments to the Federal

sentencing guidelines as the Commission determines necessary to achieve

consistency with other guideline provisions and applicable law.’” Dorsey, 567

U.S. at __, 132 S.Ct. at 2329 (quoting FSA § 8(2), 124 Stat. at 2374). In

response, the Sentencing Commission promulgated Amendment 750 to the

guidelines, which revised the crack cocaine quantity tables listed in U.S.S.G. §

2D1.1(c), to comply with the FSA’s instructions. See U.S.S.G. App. C, amend.

750 (Nov. 2011). In Amendment 759, the Commission made Amendment 750

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retroactively applicable. See U.S.S.G. App. C, amend. 759 (Nov. 2011).

      In United States v. Glover, 686 F.3d 1203 (11th Cir. 2012), we considered a

defendant’s argument that Amendment 759 abrogated Mills and gave the court

authority to reduce his sentence under § 3582(c)(2). Id. at 1204. Because his

guideline range was based on a statutory mandatory minimum which exceeded the

otherwise applicable guideline range and because Amendment 750 did not lower

his guideline range, he was not entitled to a reduction under § 3582(c)(2). Id. at

1204–05, 1206–07. We explained further that Amendment 759 does not permit a

district court to reduce a defendant’s sentence based on an amendment that did not

lower his guideline range. Id. at 1208.

      The Supreme Court has explained that where a Rule 11(c)(1)(C) plea

agreement includes a recommended sentence or guideline range, the district

court’s sentencing decision “is likely to be based on the guidelines.” Freeman v.

United States, 564 U.S. ___, ___, 131 S. Ct. 2685, 2695, 180 L. Ed. 2d 519

(2011). If it is, the defendant may seek a reduction under § 3582(c)(2). Id. In

United States v. Lawson, we held that Freeman was not on point with cases

“where the defendants were assigned a base offense level under one guideline

section, but then assigned a total offense level and guideline range under a

different guideline section.” Lawson, 686 F.3d at 1317, 1321 (11th Cir.), cert.

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denied, 133 S. Ct. 568 (2012).

      The commentary to U.S.S.G. § 1B1.10 provides that a § 3582(c)(2)

reduction is inappropriate if an amendment:

             is applicable to the defendant but the amendment does
             not have the effect of lowering the defendant’s
             applicable guideline range because of the operation of
             another guideline or statutory provision (e.g., a statutory
             mandatory minimum term of imprisonment)

                                         ...

             (i.e., the guideline range that corresponds to the offense
             level and criminal history category determined pursuant
             to 1B1.1(a), which is determined before consideration of
             any departure provision in the Guidelines Manual or any
             variance).

U.S.S.G. § 1B1.10, comment. (n. 1(A)) (emphasis added).

      Regarding Martin’s waiver argument, many of his contentions appear to be

foreclosed by our precedent. First, our opinions in Williams and Mills indicate

that his guideline range was based on the mandatory minimum even though the

court imposed a sentence below that minimum pursuant to the government’s 18

U.S.C. § 3553(e) motion. Second, Freeman did not clearly overrule Williams or

Mills, and Martin waived any such argument by failing to raise it in his initial

brief. Freeman involved a Rule 11(c)(1)(C) plea agreement and an original

sentencing proceeding, while Williams and Mills involved § 3582(c)(2) motions.

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Third, Martin’s citation to U.S.S.G. § 1B1.10 does not help him, either, because

the provision he cites makes clear that a § 3582(c)(2) reduction is inappropriate if,

as in his case, an amendment does not lower his guideline range because it was

based on another provision, such as a mandatory minimum. U.S.S.G. § 1B1.10,

comment. (n. 1(A)).

      Further, we have rejected waiver arguments like Martin’s in the § 5K1.1

context. Williams, 549 F.3d at 1340–42. We have stated that the “operative

provision in determining the [] applicable sentencing range is the statutory

mandatory minimum, . . . not the crack cocaine Guideline.” Mills, 613 F.3d at

1077. This rule applies even in a situation where the government moved only

pursuant to § 3553(e). Accordingly, we reject Martin’s waiver argument.

      Martin’s alternative argument, concerning the FSA’s reduction of his

mandatory minimum, is resolved by our decision in United States v. Hippolyte,

___ F.3d ___, No. 11-15933 (11th Cir. Mar. 14, 2013). In Hippolyte, we held that

the FSA is inapplicable to defendants who were sentenced before the FSA’s

effective date. Id. at ___; see also United States v. Berry, 701 F.3d 374, 377 (11th

Cir. 2012) (same). Because Martin was sentenced in 2008, before the FSA’s

effective date, the FSA did not alter his mandatory minimum sentence.

Accordingly, the district court properly denied his request for a sentencing

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reduction, and we affirm its order.

      AFFIRMED.




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