                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                    PUBLISH                      April 15, 2013
                                                              Elisabeth A. Shumaker
                   UNITED STATES COURT OF APPEALS                 Clerk of Court

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
 v.                                                     No. 12-2132
 CHRISTOPHER LUCERO,

       Defendant-Appellant.



        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                  (D.C. No. 1:CR-02-00566-LH-1)


Submitted on the briefs:

Stephen P. McCue, Federal Public Defender, Albuquerque, New Mexico, for
Defendant-Appellant.

Kenneth J. Gonzales, United States Attorney, and Jennifer M. Rozzoni, Assistant
United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.


Before BRISCOE, Chief Judge, SEYMOUR and LUCERO, Circuit Judges.


BRISCOE, Chief Judge.



      Christopher Lucero appeals the district court’s denial of his motion to

reduce his sentence, which he filed pursuant to 18 U.S.C. § 3582(c)(2). Lucero,
who was sentenced before the effective date of the Fair Sentencing Act (FSA),

asserts that the district court erred in failing to apply the FSA and its current

statutory mandatory minimum sentencing scheme retroactively to reduce his

sentence for possession of cocaine base. Specifically, Lucero raises the question

of whether the “reduced crack cocaine mandatory minimum sentences of the

[FSA] apply retroactively when a district court adjudicates a motion to reduce

sentence filed pursuant to 18 U.S.C. § 3582(c)(2) by a defendant who was

originally sentenced prior to the effective date of the FSA.” Aplt. Br., at 1. At

the heart of Lucero’s argument lies the issue of whether the reduction of his

sentence post FSA is a sentencing to which the FSA’s reduced mandatory

minimums apply. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and

affirm. 1

                                           I

       In 2003, Lucero pled guilty to two charges: possession of more than fifty

grams of cocaine base with intent to distribute, in violation of 21 U.S.C. §

841(a)(1), (Count 1); and possession of a firearm in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), (Count 2). R. Vol. 1,

at 13. At the time of his sentencing, the offense level that corresponded to the



       1
         On January 29, 2013, Lucero filed an unopposed motion to waive oral
argument, which this court granted. See Fed. R. App. P. 34(a)(2), (f); 10th Cir.
R. 34.1(G). The case is, therefore, submitted without oral argument.

                                          2
126.3 grams of cocaine base attributed to Lucero was 32. U.S.S.G. § 2D1.1(c)(4)

(2002). After a three level offense reduction for his acceptance of responsibility,

Lucero’s sentencing guideline range on Count 1 was 121 to 151 months. Pursuant

to 21 U.S.C. § 841(b)(1)(A), Lucero’s possession of 126.3 grams of cocaine base

resulted in a mandatory minimum sentence of ten years’ imprisonment. On

February 26, 2003, the district court sentenced Lucero to 121 months’

imprisonment on Count 1, possession of 126.3 grams of cocaine base, and 60

months’ imprisonment on Count 2, firearm possession, to be served consecutively

for a total sentence of 181 months. R. Sealed Vol. 1, at 21.

      In 2007, the Sentencing Commission amended the guidelines to reduce the

offense level for possession of cocaine base by two levels, and directed

retroactive application of the amendment. See U.S.S.G. app. C, amends. 706,

713. Arguing his sentence on Count 1 was reduced by these amendments, Lucero

filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). By

applying these amendments to Lucero’s sentence, his new guideline range would

be 120 to 125 months on Count 1. Accordingly, Lucero sought a reduction of his

sentence on Count 1 to 120 months, the statutory mandatory minimum. R. Vol. 1,

at 26. While the government did not oppose this motion, the court nevertheless

denied it after considering factors of public safety and Lucero’s post-sentencing

conduct in prison. See 18 U.S.C. § 3553(a); U.S.S.G. § 1B1.10 cmt. n.1(B)

(2008).

                                          3
      In 2010, Congress passed the FSA to remedy the 100 to 1 ratio disparity

contained in the sentencing guidelines for defendants sentenced for crimes

involving cocaine base and cocaine powder. As is pertinent to the present case,

the FSA increased the amount of cocaine base necessary to trigger the ten-year

mandatory minimum from 50 grams to 280 grams. Fair Sentencing Act of 2010,

Pub. L. No. 111-220, 124 Stat. 2372. The FSA mandated that the Sentencing

Commission amend the sentencing guidelines to reflect this change. The

Sentencing Commission complied by further amending the guidelines to reduce

the offense level for possession of cocaine base, and again directed retroactive

application of the amendment. See U.S.S.G. app. C, amends. 750, 759. Under

these amendments, Lucero’s base offense level on Count 1 would be reduced to

28.

      On July 2, 2012, Lucero filed a second motion to reduce his sentence under

§ 3582(c)(2), arguing that the FSA, subsequent guideline amendments, and the

Supreme Court’s decision in Dorsey v. United States, 132 S. Ct. 2321 (2012),

“compel[led] application of the new [FSA] mandatory minimums to Mr. Lucero.”

R. Vol. 1, at 33. Lucero argued that his possession of 126.3 grams now fell below

the 280 gram amount required to trigger the statutory ten-year mandatory

minimum, resulting in a new sentence guideline of 84 to 105 months on Count 1.

If the FSA were to apply, Lucero’s statutory mandatory minimum sentence would

be reduced from ten years’ imprisonment to five years’ imprisonment.

                                         4
      The district court denied Lucero’s motion after concluding that the

statutory mandatory minimum in effect when Lucero was sentenced continued to

apply to him. Because the applicable statutory mandatory minimum remained ten

years, the district court determined that it lacked authority under § 3582(c)(2) to

modify Lucero’s sentence to reflect the FSA’s new mandatory minimum sentence

requirements. The court did consider, sua sponte, Lucero’s positive change in

behavior, and granted its own § 3582(c)(2) motion to reduce Lucero’s sentence on

Count 1 by one month to the statutory mandatory minimum of 120 months. Id. at

37-38. Lucero now appeals the court’s denial of his § 3582(c)(2) motion.

                                          II

      “The scope of a district court’s authority in a []sentencing [modification]

proceeding under § 3582(c)(2) is a question of law that we review de novo.”

United States v. Rhodes, 549 F.3d 833, 837 (10th Cir. 2008). We review a denial

of a § 3582(c)(2) motion for abuse of discretion. United States v. Sharkey, 543

F.3d 1236, 1238 (10th Cir. 2008).

                                         III

      Generally, federal courts are prohibited from “modify[ing] a term of

imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). Section

3582(c)(2) allows a court to modify a sentence previously imposed when the

sentencing range used in the initial sentencing is subsequently lowered by the

Sentencing Commission. In such circumstances, the court may modify a sentence

                                          5
after it considers the § 3553(a) factors, to the extent they are applicable, so long

as the reduction is consistent with the Commission’s policy statements. §

3582(c)(2).

      However, “in many cases, the operation of the statutory minimum sentence

will preclude a sentence reduction under 18 U.S.C. § 3582(c)(2).” United States

v. Osborn, 679 F.3d 1193, 1195 n.1 (10th Cir. 2012). A sentence reduction under

§ 3582(c)(2) “is not authorized . . . and is not consistent with [U.S.S.G. §

1B1.10’s] policy statement if . . . an [applicable] 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).” U.S.S.G. § 1B1.10 cmt. n.1(A) (2011).

Section 3582(c)(2) proceedings “do not constitute a full resentencing of the

defendant,” and the authority of district courts to recalculate a sentence is limited

to that part of the sentence affected by a retroactively applicable amendment to

the Guidelines. U.S.S.G. § 1B1.10(a)(3) (2011); see United States v. Battle, 706

F.3d 1313, 1317 (10th Cir. 2013) (discussing the narrow authority granted

sentencing courts to modify sentences).

      We are not persuaded by the arguments Lucero raises for retroactive

application of the FSA. Lucero primarily argues that the reasoning of the

Supreme Court’s decision in Dorsey v. United States, 132 S. Ct. 2321 (2012),

warrants application of the FSA to a defendant’s post-FSA § 3582(c)(2) motion.

                                           6
But, as numerous courts have determined, 2 the exception outlined in Dorsey is

limited to sentences imposed post-FSA, and does not extend to adjudications of

motions to reduce sentences entered post-FSA. The Court’s holding in Dorsey

narrowly applies to post-FSA sentencing for pre-FSA conduct. See, e.g., 132 S.

Ct. at 2333-35 (noting the disparities between defendants sentenced before and

after the FSA “reflect[ ] a line-drawing effort, [that] will exist whenever Congress

enacts a new law changing sentences,” and that “in federal sentencing the

ordinary practice is to apply new penalties to defendants not yet sentenced, while

withholding that change from defendants already sentenced” (emphasis added)).

      In the present case, Lucero was sentenced for purposes of the FSA on

February 26, 2003. This court has ruled in several cases that the FSA does not

retroactively apply to defendants who were initially sentenced before the FSA’s

effective date of August 3, 2010. 3 United States v. Lewis, 625 F.3d 1224, 1228

      2
         See, e.g., United States v. Foster, 706 F.3d 887, 888 (7th Cir. 2013)
(affirming district court’s denial of § 3582(c)(2) motion to reduce pursuant to
FSA when the defendant was sentenced prior to the FSA’s enactment, and stating
that “[a]t least six other circuits have agreed [with that conclusion] in
nonprecedential decisions issued after Dorsey[, with n]o court of appeals
[holding] otherwise”). Several pre-Dorsey cases reached the same result. See,
United States v. Baptist, 646 F.3d 1225, 1229 (9th Cir. 2011) (collecting cases
holding the FSA did not apply to defendants sentenced prior to August 2010).
      3
         This court has also rejected Lucero’s argument in a very recent
unpublished opinion. In United States v. Randle, No. 12-5010, 2013 WL 264560,
at *3 (10th Cir. Jan. 24, 2013), a panel of this court affirmed the district court’s
denial of the defendant’s § 3582(c)(2) motion for a reduced sentence pursuant to
the FSA’s statutory minimums because the defendant was sentenced prior to the
                                                                        (continued...)

                                          7
(10th Cir. 2010) (stating that the FSA was not retroactive), overruled in part by

Dorsey, 132 S. Ct. at 2326; Osborn, 679 F.3d at 1195 n.1 (applying pre-FSA

statutory mandatory minimum to § 3582(c)(2) motion to reduce sentence filed

pursuant to Amendment 750); United States v. Cornelius, 696 F.3d 1307, 1328

(10th Cir. 2012) (“We have squarely held that the FSA does not apply

retroactively,” and this “ruling is consistent with Dorsey”) (citing Lewis, 625

F.3d at 1228).

      Lucero argues Cornelius and Lewis, both direct appeals following initial

sentencings, are distinguishable because he seeks application of the FSA to

reduce a mandatory minimum sentence by filing a motion to modify his sentence

under § 3582(c)(2). He argues this distinction warrants a different result because

the FSA applies to “current” sentencing and the district court’s ruling on a §

3582(c)(2) motion is such a “sentencing proceeding.” Aplt. Reply Br., at 4 (citing

United States v. Phillips, 597 F.3d 1190, 1198 (11th Cir. 2010)).

      This argument is not persuasive. As Lucero recognizes, § 3582(c)(2)

“authorize[s] only a limited adjustment to an otherwise final sentence and not a

plenary resentencing proceeding.” Dillon v. United States, 130 S. Ct. 2683, 2691

      3
       (...continued)
FSA’s effective date. Id. In that case, Randle pled guilty to, inter alia, one count
of possession of more than 50 grams (specifically, 176 grams) of cocaine base,
and asserted the same arguments Lucero presently raises. The panel rejected
Randle’s argument as “contrary to controlling case law.” Id. at *3 (citing Osborn,
679 F.3d at 1195 n.1; and United States v. Cornelius, 696 F.3d 1307, 1328 (10th
Cir. 2012)).

                                          8
(2010). The Supreme Court has rejected Lucero’s characterization of §

3582(c)(2) motion as a “resentencing,” which it found to be contrary to that

section’s plain language. Id. at 2690-91. Accordingly, a sentencing court’s

ruling on a § 3582(c)(2) motion amounts only to modification of an otherwise

final sentence. Id. at 2691.

      Sentence modification under § 3582(c) does not amount to “resentencing,”

and a district court does not have discretion to sentence below the statutorily

mandated minimum sentence that applied when the defendant was initially

sentenced. See Cornelius, 696 F.3d at 1326-27; see also United States v. Berry,

701 F.3d 374, 377-78 (11th Cir. 2012) (affirming denial of a § 3582(c)(2) motion

to reduce sentence because “[n]othing in the FSA extinguishes the statutory

mandatory minimum sentence or penalty already imposed in Berry’s case before

the FSA’s enactment”). Accordingly, the district court did not have authority to

grant Lucero’s motion to reduce his pre-FSA sentence below the mandatory

minimum sentence that was applicable at his sentencing in 2003.

                                         IV

      We AFFIRM the district court’s denial of Lucero’s § 3582(c)(2) motion to

reduce his sentence.




                                          9
