            Case: 12-11670   Date Filed: 12/05/2012   Page: 1 of 3

                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-11670
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:07-cr-20009-JEM-3


UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

                                   versus


STEPHANIE JOHNSON,

                                                         Defendant - Appellant.

                       ________________________

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

                             (December 5, 2012)

Before HULL, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
               Case: 12-11670     Date Filed: 12/05/2012    Page: 2 of 3

      Stephanie Johnson appeals her sentence of 120 months of imprisonment,

which was imposed after the district court reduced for the second time Johnson’s

original sentence of 168 months of imprisonment. 18 U.S.C. § 3582(c)(2). On

Johnson’s motion, the district court sentenced her to the statutory minimum

sentence in effect when she was first sentenced, but Johnson requested a greater

reduction based on the lower minimum sentence under the Fair Sentencing Act of

2010. We affirm.

      Johnson’s argument for a further reduction of her sentence is foreclosed by

our recent decision in United States v. Berry, No. 12–11150 (11th Cir. Nov. 14,

2012), that a defendant sentenced before the effective date of the Act is ineligible

to have her sentence reduced. We held that the Act “is not a guidelines

amendment by the Sentencing Commission, but rather a statutory change by

Congress, and . . . does not serve as a basis for a . . . sentence reduction” under

section 3582(c)(2). Id., slip op. at 4. Even if the Act could serve as a basis to

reduce a sentence, we held in Berry that the lower mandatory minimum sentences

did not apply retroactively to offenders sentenced before the effective date of the

Act. Id. at 4–5. As explained by the Supreme Court in Dorsey v. United States,

567 U.S. ____, 132 S. Ct. 2321 (2012), “application of the new minimums to pre-

Act offenders sentenced after August 3 create[d] a new set of disparities,” that was

an inevitable consequence of any “new law changing sentences” and was

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consistent with “the ordinary practice . . . to apply new penalties to defendants not

yet sentenced, while withholding that change from defendants already sentenced.”

Id. at 2335. The district court did not err in denying Johnson’s motion to reduce

her sentence below the statutory minimum in effect at her original sentencing.

      We AFFIRM the denial of Johnson’s motion to reduce her sentence below

the statutory minimum in effect at her original sentencing.

      AFFIRMED.




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