              Case: 12-13231    Date Filed: 10/15/2013   Page: 1 of 5


                                                                  [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-13231
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 8:09-cr-00399-SCB-AEP-1



UNITED STATES OF AMERICA,

                                                          Plaintiff - Appellee,

                                      versus

NATHANIEL HARGROVE,
a.k.a. Frog,

                                                          Defendant - Appellant.

                          ________________________

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

                                (October 15, 2013)

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.

KRAVITCH, Circuit Judge:

      Nathaniel Hargrove appeals the district court’s denial of his 18 U.S.C.

§ 3582(c)(2) motion to reduce his sentence. Hargrove was subject to a statutory
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mandatory minimum sentence of 120 months’ imprisonment, but a retroactive

amendment to the sentencing guidelines lowered his applicable guidelines range

from 120 to 125 months’ imprisonment to simply 120 months. We hold that a

defendant subject to a statutory mandatory minimum is eligible for § 3582(c)(2)

relief when he was sentenced above that minimum and a retroactive guidelines

amendment lowers the high-end of his applicable guidelines range. Because the

district court erroneously concluded it lacked the authority to consider Hargrove’s

motion, we vacate the district court’s order and remand for the court to determine

whether to exercise its discretion to reduce Hargrove’s sentence.

      Hargrove was convicted in 2010 of four counts of distributing crack cocaine,

in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii), and (b)(1)(C) (2009). At

sentencing, the district court held Hargrove responsible for 16.4 grams of crack

cocaine, resulting in a guidelines range of 100 to 125 months’ imprisonment under

the drug quantity tables in place at the time. But because Hargrove had a prior

felony drug conviction, he faced a mandatory 120-month statutory minimum,

which changed his guidelines range to 120 to 125 months’ imprisonment. See id.

§ 841(b)(1)(B)(iii) (2009); U.S.S.G. § 5G1.1(c)(2). The district court then

departed upward under U.S.S.G. § 4A1.3, increasing Hargrove’s guidelines range

to 210 to 262 months’ imprisonment. The court sentenced Hargrove to 240

months.


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      In 2012, Hargrove requested a sentence reduction under § 3582(c)(2). The

district court found Hargrove ineligible for relief because his guidelines range was

based on a statutory mandatory minimum. This is Hargrove’s appeal.

      “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. James, 548 F.3d 983,

984 (11th Cir. 2008). That statute allows a district court to reduce a defendant’s

sentence when a retroactive amendment to the sentencing guidelines lowers his

applicable guidelines range. 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10, cmt.

(n.1(A)). A sentence reduction is not authorized, however, when “the amendment

does not have the effect of lowering the defendant’s applicable guideline range

because of the operation of [a] . . . statutory provision (e.g., a statutory mandatory

minimum term of imprisonment).” U.S.S.G. § 1B1.10, cmt. (n.1(A)). Hargrove

argues that he was entitled to a reduction because his sentence was not based

exclusively on a statutory mandatory minimum. He asserts that Amendment 750

to the sentencing guidelines, which revised the drug quantity tables, lowered his

applicable guidelines range, making him eligible for § 3582(c)(2) relief.

      We agree that Amendment 750 lowered Hargrove’s applicable guidelines

range. The Sentencing Commission defines “applicable guideline range” as “the

guideline range that corresponds to the offense level and criminal history category

determined pursuant to § 1B1.1(a), which is determined before consideration of


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any departure provision in the Guidelines Manual or any variance.” U.S.S.G.

§ 1B1.10, cmt. (n. 1(A)). Hargrove’s “applicable guideline range” before

Amendment 750 was, therefore, 120 to 125 months’ imprisonment.1 The low-end

of that range, 120 months, was based on the statutory mandatory minimum, but the

rest, up to 125 months, was derived from the drug quantity tables.

       After Amendment 750, Hargrove’s initial guidelines range would be 70 to

87 months’ imprisonment. But because Hargrove remains subject to a 120-month

statutory mandatory minimum sentence,2 his final guidelines range would be

simply 120 months’ imprisonment. See 21 U.S.C. § 841(b)(1)(B)(iii) (2009);

U.S.S.G. § 5G1.1(b). Amendment 750, therefore, “lower[ed] [Hargrove’s]

applicable guideline range” by reducing the high-end from 125 to 120 months. See

U.S.S.G. § 1B1.10, cmt. (n. 1(A)); see also 18 U.S.C. § 3582(c)(2). Although we

express no view on whether Hargrove should receive a sentence reduction, the

district court erroneously concluded that it lacked the authority to reduce his

sentence under § 3582(c)(2). See United States v. Liberse, 688 F.3d 1198, 1202-03


1
  Hargrove’s § 4A1.3 departure is not included in his “applicable guideline range” for purposes
of § 3582(c)(2). In Amendment 759, the Sentencing Commission made explicit that § 4A1.3
departures are not part of the “applicable guideline range.” See U.S.S.G. Amend. 759, app. C,
Vol. III, at 421; see also United States v. Hippolyte, 712 F.3d 535, 541 (11th Cir.), petition for
cert. filed, (U.S. June 12, 2013) (No. 12-10828).
2
  Hargrove argues that he is no longer subject to the 120-month mandatory minimum as a result
of the Fair Sentencing Act of 2010 (FSA), Pub. L. No. 111-220, 124 Stat. 2372 (2010). But the
FSA applies only to defendants sentenced after August 3, 2010, the date it took effect. United
States v. Berry, 701 F.3d 374, 377-78 (11th Cir. 2012). Because Hargrove was sentenced on
June 29, 2010, the FSA does not apply to him.
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(11th Cir. 2012). We accordingly vacate the denial of Hargrove’s motion and

remand to permit the district court to decide the motion on the merits.

      VACATED AND REMANDED.




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