                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                November 1, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 12-5035
 v.                                          (D.Ct. No. 4:06-CR-00159-GKF-1)
                                                        (N.D. Okla.)
 MARCO DEWON MURPHY,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant Marco Dewon Murphy appeals the district court’s grant of his 18


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
U.S.C. § 3582(c)(2) motion, imposing a reduction in his offense level for a

reduced sentence of sixty months for his possession of more than five grams of

cocaine base with intent to distribute. Even though the district court reduced his

sentence, Mr. Murphy seeks a further reduction through retroactive application of

the Fair Sentencing Act of 2010, despite the fact his sentence was imposed before

the Act’s effective date. Exercising our jurisdiction under 28 U.S.C. § 1291, we

affirm.



                      I. Factual and Procedural Background

      The following undisputed facts are contained in the record on appeal. In

2006, Mr. Murphy pled guilty to one count of possession of more than five grams

of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(B)(iii) and 18 U.S.C. § 2, and one count of possessing a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i)

and (2). Prior to sentencing, a federal probation officer prepared a presentence

report in conjunction with the 2006 United States Sentencing Guidelines

(“Guidelines” or “U.S.S.G.”). With respect to the drug trafficking count, the

probation officer converted Mr. Murphy’s possession of 249.67 grams of cocaine,

39.58 grams of cocaine base, and 9.92 grams of marijuana into a marijuana

equivalency, for a total of 841.53 kilograms of marijuana, resulting in a base

offense level of 30. The probation officer also reduced the base offense level by

                                        -2-
three levels for acceptance of responsibility, resulting in a total offense level of

27. Mr. Murphy’s criminal history category of III, together with a total offense

level of 27, resulted in a Guidelines range of eighty-seven to 108 months for his

drug trafficking offense. The probation officer also noted the quantity of cocaine

base at issue subjected him to a statutory minimum of sixty months imprisonment

under 21 U.S.C. § 841(b)(1)(B)(iii). With respect to Mr. Murphy’s conviction for

possession of a firearm in furtherance of a drug trafficking crime, the probation

officer applied U.S.S.G. § 2K2.4(b)–the applicable guideline for convictions

under 18 U.S.C. § 924(c)(1)(A)(i)–which resulted in a sixty-month sentence, to

run consecutive to his sentence for drug trafficking.



      On March 12, 2007, the district court sentenced Mr. Murphy to ninety-three

months imprisonment on the drug trafficking offense and sixty months

imprisonment on the firearm offense, to run consecutively. Mr. Murphy did not

file a direct appeal of either his convictions or sentences.



      On May 1, 2007, the United States Sentencing Commission (Sentencing

Commission) issued Amendment 706 which modified the Drug Quantity Table in

U.S.S.G. § 2D1.1(c) downward two levels for crack cocaine, effective November




                                          -3-
1, 2007, and retroactive as of March 3, 2008. 1 In October 2008, Mr. Murphy filed

a motion pursuant to 18 U.S.C. § 3582(c)(2) to reduce his drug trafficking

sentence based on Amendment 706. In November 2008, the district court reduced

Mr. Murphy’s sentence for the drug trafficking offense to seventy months

imprisonment after granting his motion for a two-level reduction and determining

his criminal history category of III, together with a total offense level of 25,

resulted in a Guidelines range of seventy to eighty-seven months. It also noted

his seventy-month sentence, together with the consecutive firearm sentence of

sixty months, resulted in a total sentence of 130 months.



      Two years later, Congress enacted the Fair Sentencing Act of 2010, which

reduced the statutory mandatory minimum sentencing penalties for crack cocaine

by significantly reducing the prior crack/powder ratio but which did not apply

retroactively to defendants previously sentenced under the prior existing

mandatory minimum sentencing statutes. See Pub. L. No. 111-220, 124 Stat.

2372 (Aug. 3, 2010). See also United States v. Lewis, 625 F.3d 1224, 1228 (10th

Cir. 2010) (holding statutory reduction in mandatory minimum penalty based on

new ratio is not retroactive), cert. denied, 131 S. Ct. 1790 (2011). The Act also

directed the Sentencing Commission to revise the Guidelines to reflect a change


      1
        See U.S.S.G. App. C, Amend. 706 (Reason for Amend.), Amends. 712
and 713 (2010 Supp.); U.S.S.G. § 1B1.10(a)(2).

                                         -4-
in the crack/powder ratio. See Pub. L. No. 111-220, 124 Stat. 2372, 2374. Based

on that directive, the Commission again reduced the Drug Quantity Table offense

levels for crack cocaine through Amendment 750 to the Guidelines, and, in

another amendment, gave the reduction retroactive effect by amending Guidelines

§ 1B1.10(c), which allows district courts to retroactively reduce a defendant’s

term of imprisonment under 18 U.S.C. § 3582(c)(2) for certain expressly-cited

amendments. 2



      In January 2012, Mr. Murphy filed a second motion to reduce his sentence

pursuant to 18 U.S.C. § 3582(c)(2) as a result of Amendment 750 and the

resulting revised Drug Quantity Table. He argued the quantity of crack cocaine

attributable to him should result in a two-level reduction of his offense level

under the revised Drug Quantity Table for a revised sentencing range of fifty-

seven to seventy-one months. For the purpose of preserving an argument on

appeal that his sentence should be further reduced, Mr. Murphy also claimed the

Fair Sentencing Act should apply retroactively to his sentence for the purpose of

reducing the statutory mandatory minimum penalty of sixty months imprisonment


      2
        See U.S.S.G. Amendments 748, 750, and 759, which amended U.S.S.G.
§§ 1B1.10 and 2D1.1 and provided retroactive application of the lower crack
cocaine drug offense levels when proceeding under 18 U.S.C. § 3582(c)(2). See
U.S.S.G. App. C, Amends. 748, 750, and 759 (2011 Supp.). See also Sentencing
Commission’s Sentencing Guidelines Notice, 76 FR 41332-01, 2011 WL
2689212, at *1 (July 13, 2011).

                                         -5-
under 21 U.S.C. § 841(b)(1)(B)(iii). However, in making this argument, Mr.

Murphy acknowledged this court, in Lewis, held the Fair Sentencing Act is not

retroactive.



      The government did not oppose Mr. Murphy’s motion to reduce his drug

trafficking offense level two levels under the newly-revised Drug Quantity Table.

However, it explained Mr. Murphy’s amended Guidelines range must be sixty to

seventy-one months imprisonment based on the pre-existing statutory mandatory

minimum of sixty months imprisonment for his drug trafficking offense under 21

U.S.C. § 841(b)(1)(B)(iii). Accordingly, the district court granted Mr. Murphy’s

§ 3582(c) motion and modified his sentence from seventy months imprisonment

to sixty months imprisonment, which, together with his consecutive firearm

sentence of sixty months, resulted in a total sentence of 120 months.



                                   II. Discussion

      Mr. Murphy now appeals based on the issue of whether the Fair Sentencing

Act of 2010 retroactively applies for the purpose of reducing his drug trafficking

sentence below the sixty-month statutory mandatory minimum in 21 U.S.C.

§ 841(b)(1)(B)(iii). In arguing the filing date of his 18 U.S.C. § 3582(c)(2)

motion should control for the purpose of retroactive application of the Act, Mr.

Murphy relies on the Supreme Court’s decision in Dorsey v. United States, ___

                                         -6-
U.S.___, 132 S. Ct. 2321, 2331 (2012), which holds the Fair Sentencing Act

applies retroactively to conduct occurring before the Act’s effective date when the

sentence is imposed after its effective date. Mr. Murphy reasons the same

retroactive principle should apply to his motion for sentence modification under

§ 3582(c)(2) because it was filed after the Act’s effective date and his sentence

was subsequently reduced, thereby making his initial 2007 sentence “non-final”

or “nullified” and the modified sentence a new sentence imposed after the Act’s

effective date.



      We generally “review for an abuse of discretion a district court’s decision

to deny a reduction of sentence under 18 U.S.C. § 3582(c)(2).” United States v.

Osborn, 679 F.3d 1193, 1195 (10th Cir. 2012). However, a district court has no

discretion to depart from a statutorily mandated minimum sentence. See United

States v. Payton, 405 F.3d 1168, 1173 (10th Cir. 2005).



      As previously explained, Mr. Murphy received the instant reduction in his

sentence through Amendment 750 to the Guidelines, which changed the Drug

Quantity Table and may be applied retroactively. See Osborn, 679 F.3d at 1194-

95 n.1. However, we have repeatedly held the Fair Sentencing Act, which

amends certain statutory minimum sentences, does not apply retroactively to

defendants, like Mr. Murphy, sentenced before its August 3, 2010 effective date.

                                         -7-
See United States v. Cornelius, ___ F.3d ___, 2012 WL 4075877, at *15 (Sept.

18, 2012) (slip. op.); Osborn, 679 F.3d at 1195 n.1; Lewis, 625 F.3d at 1228.

This is in accord with other circuit courts, which are unanimous in holding the

Act does not apply to defendants sentenced prior to its effective date, 3 and

consistent with the Supreme Court’s decision in Dorsey, which stands for the

limited proposition that the Fair Sentencing Act applies retroactively to offenders

who committed their offenses prior to its August 3, 2010 effective date but were

sentenced after that date. See 132 S. Ct. at 2331.



      In this case, Mr. Murphy committed the drug trafficking offense in 2006

and was sentenced in 2007, long before the August 3, 2010 effective date of the

Fair Sentencing Act. The fact Mr. Murphy filed his § 3582(c) motion and

received a reduced sentence through that motion after the effective date of the Act

does not make him eligible for a further reduction, and nothing in the Fair

Sentencing Act, Dorsey, or our case precedent suggests otherwise. Therefore, the

district court properly concluded the Act and its reduction of certain mandatory

minimum sentences did not apply retroactively to his sentence. As a result, the

mandatory minimum statutory sentence of sixty months for Mr. Murphy’s drug

trafficking offense must stand.


      3
        See United States v. Baptist, 646 F.3d 1225, 1229 (9th Cir. 2011), cert.
denied, 132 S. Ct. 1053 (2012) (citing other circuit cases).

                                         -8-
                         III. Conclusion

Accordingly, the judgment of the district court is AFFIRMED.



                              Entered by the Court:

                              WADE BRORBY
                              United States Circuit Judge




                                -9-
