           Case: 12-12651   Date Filed: 09/04/2013   Page: 1 of 4




                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-12651
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:08-cr-60248-WJZ-2


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

NAKILA GORDON,

                                                         Defendant-Appellant.

                      ________________________

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

                            (September 4, 2013)

Before HULL, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 12-12651    Date Filed: 09/04/2013   Page: 2 of 4


      Nakila Gordon, a federal prisoner convicted of crack cocaine offenses,

appeals the denial of her counseled 18 U.S.C. § 3582(c)(2) motion to reduce her

sentence based on Amendment 750 to the Sentencing Guidelines and the Fair

Sentencing Act of 2010 (“FSA”). After review, we affirm.

      Under § 3582(c)(2), a district court has the authority to reduce a defendant’s

prison term if it was “based on a sentencing range that has subsequently been

lowered by the Sentencing Commission pursuant to 28 U.S.C. [§] 994(o).” 18

U.S.C. § 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1). If, however, the

defendant’s sentencing range is not lowered by a retroactively applicable guideline

amendment, the district court has no authority to reduce the defendant’s sentence.

United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008); U.S.S.G.

§ 1B1.10(a)(2)(B). Thus, a reduction is not authorized if an applicable amendment

does not lower a defendant’s guidelines range “because of the operation of another

guideline or statutory provision,” such as the statutory mandatory minimum term

of imprisonment. U.S.S.G. § 1B1.10 cmt. n.1(A); see also United States v. Glover,

686 F.3d 1203, 1206 (11th Cir. 2012) (explaining that a sentence reduction is not

authorized “where the difference in the initial calculation would have made no




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difference because a mandatory minimum would have trumped the initial

calculation and dictated the final guidelines range anyway”). 1

       Gordon’s initial advisory guidelines range was 97 to 121 months’

imprisonment using a base offense level of 32 under U.S.S.G. § 2D1.1. Because

the mandatory minimum under 21 U.S.C. § 841(b)(1)(A) was ten years, or 120

months, Gordon’s guidelines range became 120 to 121 months. See U.S.S.G.

§ 5G1.1(c)(2) (prohibiting the district court from imposing a guidelines sentence

below the statutory mandatory minimum sentence).

       At Gordon’s April 17, 2009 sentencing, the district court imposed the

mandatory-minimum 120-month sentence required by § 841(b)(1)(A). Thus, even

if Amendment 750 changed Gordon’s base offense level under U.S.S.G. § 2D1.1

from 32 to 28, it did not actually lower her applicable guidelines range. See

Glover, 686 F.3d at 1206.

       Gordon contends that she is eligible for a § 3582(c)(2) sentence reduction

because the FSA lowered the mandatory minimum sentence for her offense from

ten years to five years. See Pub. L. No. 111-220 § 2(a), 124 Stat. 2372 (2010).

The FSA, however, does not serve as a basis for a § 3582(c)(2) sentence reduction

because it is a statutory change implemented by Congress, not a guidelines


       1
        We review de novo the district court’s legal conclusions regarding the scope of its
authority under 18 U.S.C. § 3582(c)(2). United States v. Liberse, 688 F.3d 1198, 1200 n.1 (11th
Cir. 2012).
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amendment enacted by the Sentencing Commission. See United States v. Berry,

701 F.3d 374, 377 (11th Cir. 2012). Furthermore, the FSA does not apply

retroactively to defendants like Gordon who were sentenced before its August 3,

2010 enactment. Id.; see also United States v. Hippolyte, 712 F.3d 535, 542 (11th

Cir. 2013). Thus, neither Amendment 750 nor the FSA provided a basis for the

district court to reduce Gordon’s sentence under § 3582(c)(2).

      Accordingly, we affirm the district court’s denial of Gordon’s § 3582(c)(2)

motion to reduce her sentence.

      AFFIRMED.




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