           Case: 16-10236   Date Filed: 08/02/2016   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-10236
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 0:08-cr-60147-DTKH-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

JAKE STEVE MICHEL,

                                                         Defendant-Appellant.

                      ________________________

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

                            (August 2, 2016)

Before MARCUS, WILLIAM PRYOR and FAY, Circuit Judges.

PER CURIAM:
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      Jake Steve Michel appeals denial of his motion to modify or reduce his

imprisonment sentence under 18 U.S.C. § 3582(c)(2) and Amendment 782 to the

Sentencing Guidelines. We affirm.

                                I. BACKGROUND

      In October 2008, Michel pled guilty to one count of possession with intent to

distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(B) (Count 1), one count of possession with intent to distribute 50 grams or

more of cocaine base (crack cocaine), in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(A) (Count 2), one count of knowingly using or carrying a firearm during and

in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count

3), and one count of being a felon in possession of a firearm, in violation of 18

U.S.C. §§ 922(g), 924(e) (Count 4). Applying the 2008 Sentencing Guidelines

Manual, the presentence investigation report (“PSI”) grouped Counts 1, 2, and 4

together and noted the Guidelines sentence for Count 3 was the statutory term of

imprisonment. The probation officer determined Michel was responsible for the

equivalent of 2,291 kilograms of marijuana. Under U.S.S.G. § 2D1.1(a)(3), the

base offense level for that amount was 32; because the crime included cocaine

base, however, the probation officer applied a two-level reduction, resulting in a

base offense level of 30. Michel received a three-level reduction for his acceptance




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of responsibility, resulting in a total offense level of 27. He had three criminal-

history points; therefore, he was assigned a criminal-history category of II.

      With his total offense level of 27 and criminal-history category of II,

Michel’s Guidelines sentencing range for Counts 1, 2, and 4 was 78 to 97 months

of imprisonment. Michel was subject to two mandatory-minimum sentences: a

mandatory-minimum sentence of 10 years (120 months) for Count 2 and a

mandatory-minimum sentence of 5 years (60 months) for Count 3 to run

consecutive to any other imprisonment term. Consequently, Michel’s total

Guidelines sentencing range for all four counts was 180 months of imprisonment.

In January 2009, the district judge sentenced Michel to a total term of 180 months

of imprisonment, consisting of 120 months each for Counts 1 and 2, to be served

concurrently, and 60 months each for Counts 3 and 4, to be served concurrently

with each other and consecutive to the imprisonment sentences for Counts 1 and 2.

      In November 2015, Michel filed a pro se § 3582(c)(2) motion requesting a

sentence reduction based on Amendment 782 to the Sentencing Guidelines, which

reduced the base offense levels for most drug offenses. The judge appointed the

federal public defender to represent Michel, directed the U.S. Probation office to

file a report on Michel’s eligibility for relief under Amendment 782, and ordered

the government to show cause why Michel’s sentence should not be reduced. The

probation officer filed a report stating Michel was not eligible for a sentence


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reduction under Amendment 782, because he was subject to a mandatory-statutory

penalty in excess of the Guidelines sentencing range. The government filed an

opposition to Michel’s motion and agreed with the probation officer that Michel

was ineligible for relief. The public defender did not supplement Michel’s pro se

§ 3582(c)(2) motion. The judge concluded he lacked authority to grant Michel’s

motion, because Amendment 782 had no effect since Michel was sentenced to a

statutory-mandatory-minimum sentence that exceeded his Guidelines sentencing

range. Accordingly, the judge denied Michel’s motion.

      For the first time on appeal, Michel argues the statutory-mandatory-

minimum penalties in the Fair Sentencing Act of 2010 (“FSA”) must be applied in

conjunction with the retroactive Guidelines amendments. In a § 3582(c)(2)

proceeding, Michel contends a district judge must apply the FSA statutory-

mandatory-minimum sentences for crack-cocaine crimes in assessing a defendant’s

eligibility for a reduction under Amendment 782, even if the defendant was

sentenced prior to the effective date of the FSA and subject to a higher mandatory-

minimum-imprisonment sentence.

                                II. DISCUSSION

      We generally review de novo a district judge’s conclusions about the scope

of his legal authority under 18 U.S.C. § 3582(c)(2). United States v. Colon, 707

F.3d 1255, 1258 (11th Cir. 2013). Arguments not raised in district court, however,


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are reviewed only for plain error. United States v. Johnson, 694 F.3d 1192, 1195

(11th Cir. 2012).

      Under § 3582(c)(2), a district judge may reduce a defendant’s sentence if his

Guidelines range has been lowered by a retroactively applicable amendment to the

Sentencing Guidelines. 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10, comment.

(n.1(A)). Such a reduction is not authorized, however, when the retroactive

amendment reduces the defendant’s base-offense level but does not alter his

sentencing range. United States v. Berry, 701 F.3d 374, 376 (11th Cir. 2012). If

the amendment does not actually lower the defendant’s Guidelines sentencing

range “because of the operation of another guideline or statutory provision,” such

as a statutory-mandatory-minimum sentence, the judge may not reduce the

defendant’s sentence. Id. (quoting U.S.S.G. § 1B1.10, comment. (n.1(A))).

Consequently, a defendant whose Guidelines imprisonment sentence was based on

a statutory-mandatory minimum is not eligible for relief under § 3582(c)(2). Id.

      The FSA, which became effective on August 3, 2010, reduced statutory-

mandatory-minimum sentences for crack-cocaine crimes in 21 U.S.C. § 841(b).

Id. at 377; FSA, Pub. L. No. 111-220 § 2(a), 124 Stat. 2372 (2010). The Supreme

Court has held the FSA lower mandatory-minimum sentences could be applied to

defendants who were sentenced after enactment of the FSA, even if their crime

was committed prior to the effective date of the FSA. Dorsey v. United States, 567


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U.S. __, __, 132 S. Ct. 2321, 2326 (2012). The Court did not state the FSA should

apply retroactively to defendants sentenced prior to its effective date. Instead, the

Court noted “in federal sentencing, the ordinary practice is to apply new penalties

to defendants not yet sentenced, while withholding that change from defendants

already sentenced.” Id. at __, 132 S. Ct. at 2335.

       In Berry, on appeal from denial of a § 3582(c)(2) motion, we explained the

FSA could not serve as a basis for a sentence reduction under § 3582(c)(2),

because it is not a Guidelines amendment promulgated by the Sentencing

Commission. Berry, 701 F.3d at 377. Even assuming the defendant’s argument

the FSA applied retroactively to defendants sentenced prior to enactment of the

FSA could be raised in a § 3582(c)(2) proceeding, we held that argument failed

because Dorsey confined application of the FSA to offenders sentenced after the

effective date of the FSA. See id. at 377-78 (“We agree with every other circuit to

address the issue that there is no evidence that Congress intended the FSA to apply

to defendants who had been sentenced prior to the August 3, 2010 date of the Act’s

enactment.” (citation, internal quotation marks, and alteration omitted)).

      Michel’s argument fails because it is foreclosed by our Berry decision.

Berry held the FSA cannot serve as a basis for a sentence reduction under

§ 3582(c)(2); even if it could, the FSA mandatory-minimum sentences do not

apply to defendants like Michel, who were sentenced prior to its effective date. Id.


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Therefore, the district judge did not plainly err in failing to apply the FSA

mandatory-minimum sentence in Michel’s § 3582(c)(2) proceeding or in

concluding Michel was ineligible for relief under Amendment 782 and

§ 3582(c)(2), because his sentence was based on a statutory-mandatory-minimum

sentence that exceeded his Guidelines sentencing range. Id. at 376; U.S.S.G.

§ 1B1.10, comment. (n.1(A)).

      AFFIRMED.




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