                                                                    [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT  OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                        JUNE 20, 2012
                                            No. 12-10540
                                        Non-Argument Calendar            JOHN LEY
                                                                          CLERK
                                      ________________________

                              D.C. Docket No. 0:94-cr-06003-DTKH-4



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff-Appellee,


                                               versus


RONALD FORD,

llllllllllllllllllllllllllllllllllllllll                         Defendant-Appellant.

                                     ________________________

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

                                           (June 20, 2012)

Before TJOFLAT, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:

          Ronald Ford appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2)

motion. Ford’s motion requested that his 324-month sentence, imposed for

conspiracy to possess with intent to distribute cocaine base and possession with

intent to distribute cocaine base, be reduced in light of Amendment 750 to the

Sentencing Guidelines, which reduced the base offense levels corresponding to

some crack cocaine offenses. On appeal, Ford acknowledges that he was

ineligible for a § 3582(c)(2) reduction under controlling precedent, but argues that

the history and policy behind the Fair Sentencing Act of 2010 (“FSA”), Pub. L.

No. 111-220, 124 Stat. 2372 (2010), show an intent to grant district courts the

authority to make sentence reductions greater than those previously authorized.

Given the special nature of Amendment 750, Ford maintains that there is

substantial ambiguity as to whether the court had authority to reduce his sentence,

and he requests that we resolve that uncertainty in his favor under the rule of

lenity.

          We review de novo the district court’s legal conclusions regarding the scope

of its authority under § 3582(c)(2). See United States v. Moore, 541 F.3d 1323,

1326 (11th Cir. 2008). Under § 3582(c), the district court “may not modify a term

of imprisonment once it has been imposed except . . . in the case of a defendant


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who has been sentenced to a term of imprisonment based on a sentencing range

that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C.

§ 3582(c)(2). A modification is permitted only “if such a reduction is consistent

with applicable policy statements issued by the Sentencing Commission.” Id. The

Sentencing Guidelines provide that a reduction in sentence as the result of a

retroactively applicable amendment is not proper if the “amendment . . . does not

have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G.

§ 1B1.10(a)(2)(B). The Supreme Court has explicitly held that a district court may

not reduce a defendant’s sentence below his amended guideline range, unless his

original sentence was for a term below the guideline range. Freeman v. United

States, 564 U.S. __, 131 S.Ct. 2685, 2693, 180 L.Ed.2d. 519 (2011); Dillon v.

United States, 560 U.S. __, 130 S.Ct. 2683, 2691-92, 177 L.Ed.2d 271 (2010).

      Effective November 1, 2011, Amendment 750 to the Sentencing Guidelines

altered the Drug Quantity Table used to calculate the base offense levels

corresponding to the possession of certain amounts of crack cocaine. See U.S.S.G.

App. C, Amend. 750 (2011). Amendment 750 notes that it “does not lower the

sentences[] for offenses involving . . . at least 2.8 kilograms but less than 4.5

kilograms [of crack cocaine].” U.S.S.G. App. C, Amend. 750, Part C at 394.

      “The rule of lenity requires ambiguous criminal laws to be interpreted in


                                           3
favor of the defendants subjected to them.” United States v. Santos, 553 U.S. 507,

514, 128 S.Ct. 2020, 2025, 170 L.Ed.2d 912 (2008). “The simple existence of

some statutory ambiguity, however, is not sufficient to warrant application of that

rule.” Muscarello v. United States, 524 U.S. 125, 138, 118 S.Ct. 1911, 1919, 141

L.Ed.2d 111 (1998). In order for the rule of lenity to apply, there must be a

“grievous ambiguity or uncertainty in the statute.” Id. at 138-39, 118 S.Ct. at 1919

(quotations omitted).

      Here, the district court lacked authority to reduce Ford’s sentence under

§ 3582(c)(2), as Amendment 750 did not lower his guideline range. Furthermore,

Ford is serving the minimum sentence available for his guideline range, thus, the

district court could not have reduced his sentence any further. Freeman, 564 U.S.

at __, 131 S.Ct. at 2693; Dillon, 560 U.S. at __, 130 S.Ct. at 2691-92. Ford has

not shown any “grievous ambiguity or uncertainty” in any criminal statute, and the

rule of lenity does not apply in this case. Accordingly, upon review of the record

and consideration of the parties’ briefs, we affirm the district court’s denial of

Ford’s motion.

      AFFIRMED.




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