            Case: 12-10752    Date Filed: 10/11/2012   Page: 1 of 6

                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 12-10752
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 9:02-cr-80172-KAM-14


UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

           versus

BENJAMIN BOSTON,

                                                           Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________
                              (October 11, 2012)

Before HULL, MARTIN, and EDMONDSON, Circuit Judges.


PER CURIAM:

     Benjamin Boston, a federal prisoner convicted of a crack cocaine offense,
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appeals, through counsel, the district court’s denial of his request for a sentence

reduction pursuant to 18 U.S.C. § 3582(c)(2) -- his second request -- and

Amendment 750 to the Sentencing Guidelines, which lowered the base offense

levels applicable to crack cocaine offenses. On appeal, Boston argues that the Fair

Sentencing Act (“FSA”) of 2010, Pub.L.No. 111-220, 124 Stat. 2372 (2010),

along with its history and underlying policy, overturned this Court’s prior

controlling precedent regarding the eligibility for § 3582 relief where an

amendment fails to reduce a defendant’s base offense level. He apparently asserts

that he warrants a reduction based on the FSA’s changes to the mandatory

minimum sentences under 21 U.S.C. § 841(b). He concedes, however, that under

Amendment 750 he is responsible for 116 kilograms of marijuana, which

corresponds to an offense level of 26: the same offense level he received at his

initial § 3582 proceeding, based on Amendment 706 -- which also reduced base

offense levels applicable to crack cocaine offenses.

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

authority under 18 U.S.C. § 3582(c)(2). United States v. Moore, 541 F.3d 1323,

1326 (11th Cir. 2008).

      A district court may modify an imprisonment term “in the case of a

defendant who has been sentenced to a term of imprisonment based on a

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sentencing range that has subsequently been lowered by the Sentencing

Commission.” 18 U.S.C. § 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(2)

(providing that a reduction in the imprisonment term is not authorized under

§ 3582(c)(2) if the listed amendment does not have the effect of lowering the

applicable guideline range).

       Part A of Amendment 750 amended U.S.S.G. § 2D1.1 by reducing base

offense levels associated with various amounts of crack cocaine under the Drug

Quantity Table in § 2D1.1(c). See U.S.S.G. App. C, Amend. 750, Pt. A;

U.S.S.G. 1B1.10, comment. (n.4). Part C of Amendment 750 deleted the cross

reference in § 2D2.1(b) under which an offender who possessed more than five

grams of crack cocaine was sentenced under § 2D1.1.* U.S.S.G. App. C, Amend.

750, Pt. C; U.S.S.G. 1B1.10, comment. (n.4). In July 2011, the Sentencing

Commission decided to make Parts A and C of Amendment 750 retroactive. 76

Fed.Reg. 41332-01 (July 13, 2011). Amendment 750 became effective and


       *
         The FSA raised the drug quantities required to trigger mandatory minimum sentences under
21 U.S.C. § 841(b). Prior to the FSA’s enactment, a 5-year mandatory minimum applied to
first-time trafficking offenses involving 5 grams or more of crack cocaine. See 21 U.S.C.
§ 841(b)(1)(B)(iii) (2009). Under the FSA, the 5-year mandatory minimum applies to first-time
trafficking offenses involving 28 grams or more of crack cocaine, while no mandatory minimum
applies to those offenses involving less than 28 grams of crack cocaine. Compare 21 U.S.C.
§ 841(b)(1)(B)(iii) (2011), with 21 U.S.C. § 841(b)(1)(C) (2011). Thus, the FSA eliminated
mandatory minimum sentences for first-time trafficking offenses involving less than 28 grams of
crack cocaine. Compare 21 U.S.C. § 841(b)(1)(B)(iii) (2009), with 21 U.S.C. § 841(b)(1)(B)(iii),
(C) (2011).

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retroactive on 1 November 2011. U.S.S.G. App. C, Amends. 750, 759. Parts A

and C of Amendment 750 may serve as the basis for sentence reduction. U.S.S.G.

§ 1B1.10(c)

      A district court must follow a two-step process in ruling on a § 3582(c)(2)

motion. United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). First, the

court must recalculate the defendant’s sentence “by substituting the amended

guideline range for the originally applied guideline range, and then using that new

base level to determine what ultimate sentence it would have imposed.” Id. In

other words, in determining whether a reduction in the defendant’s imprisonment

term is warranted, “the court shall determine the amended guideline range that

would have been applicable to the defendant if the [applicable retroactive

amendment; here, Amendment 750] had been in effect at the time the defendant

was sentenced.” U.S.S.G. § 1B1.10(b)(1), (c), and comment. (n.4). “In making

such determination, the court shall substitute only the [retroactive amendment] . . .

for the corresponding guideline provisions that were applied when the defendant

was sentenced and shall leave all other guideline application decisions

unaffected.” Id. § 1B1.10(b)(1). Except in cases of substantial assistance, courts

may not reduce the defendant’s imprisonment term to a term that is less than the

minimum of the amended guideline range produced by the substitution. Id.

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§ 1B1.10(b)(2)(A). If the court reaches the second step, the court must decide

whether to retain the original sentence or to resentence the eligible defendant

under the amended guideline range. See Bravo, 203 F.3d at 781.

      According to the current Drug Equivalency Tables, 1 gram of cocaine

equals 200 grams of marijuana, while 1 gram of cocaine base (i.e., crack) equals

3,571 grams of marijuana. U.S.S.G. § 2D1.1, comment. (n.10(D)). To combine

differing controlled substances to obtain a single offense level, the court converts

each of the drugs to its marijuana equivalent, adds the quantities, and looks up the

total in the Drug Quantity Table to obtain the combined offense level. Id.

§ 2D1.1, comment. (n.10(B)). Under the amended Drug Quantity Table, a base

offense level of 26 applies to offenses involving 100 kilograms or more, but less

than 400 kilograms, of marijuana. Id. § 2D1.1(c)(7).

      Upon review of the record and consideration of the parties’ briefs, we

affirm.

      The district court lacked authority to grant Boston’s § 3582 motion for a

sentence reduction because Amendment 750 had no effect on Boston’s applicable

guidelines range. Based on the new drug equivalency calculations, Boston, as he

has conceded, was responsible for approximately 116 kilograms of marijuana,

which corresponds to a base offense level of 26, the same level he currently has

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following his prior sentence reduction: the reduction based on Amendment 706.

Accordingly, because Amendment 750 did not affect the calculation of Boston’s

base offense level and, thus, did not lower his applicable sentencing guidelines

range, he is ineligible for relief. To the extent that Boston contends that he merits

a sentence reduction based on Part C of Amendment 750 or the FSA’s changes to

the mandatory minimum sentences under 21 U.S.C. § 841(b), his argument is

misplaced because his guideline range was based on a determination under the

Drug Equivalency Tables.

      AFFIRMED.




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