                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 12-1105
                                     ___________

                          UNITED STATES OF AMERICA

                                           v.

                               STEVEN L. BELL, JR.,
                                           Appellant
                             _______________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                         D.C. Criminal No. 09-cr-00310-001
                            (Honorable Berle M. Schiller)
                                  ______________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                September 10, 2012

                Before: SCIRICA, ROTH and BARRY, Circuit Judges.

                                (Filed: October 2, 2012)
                                  _________________

                              OPINION OF THE COURT
                                 _________________

SCIRICA, Circuit Judge.

      Steven L. Bell, Jr. pleaded guilty to possession of cocaine base and a firearm and

was sentenced on January 11, 2010 to 165 months’ imprisonment. After the Fair

Sentencing Act of 2010 (FSA) lowered the mandatory minimum sentences for cocaine

base offenses, and the Sentencing Commission reduced the offense levels applicable to
these offenses, Bell filed a motion for reduction in sentence seeking the benefit of both

reductions. The District Court reduced Bell’s sentence based on the amended Guidelines

but concluded the pre-FSA mandatory minimum sentence still applied. Bell argues the

court erred by not retroactively applying the FSA’s more lenient mandatory minimum

provisions when considering his sentence reduction. We will affirm.

                                             I

       Philadelphia police officers recovered 10.04 grams of cocaine base and a loaded

handgun from Bell after a high-speed chase ended in a crash on April 7, 2009. On

September 30, 2009, Bell pleaded guilty to possession with intent to distribute five grams

or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (count one);

possession of a firearm during a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1) (count two); and possession of a firearm by a convicted felon, in violation of

18 U.S.C. § 922(g)(1) (count three).

       At the time of Bell’s sentencing, count one carried a mandatory minimum penalty

of sixty months’ imprisonment. Count two carried a mandatory minimum penalty of sixty

months’ imprisonment, to run consecutively to any other sentence imposed. Based on an

adjusted offense level of twenty-three and a criminal history category of V, the

Presentence Investigation Report determined Bell’s guideline range to be 84 to 105

months’ imprisonment on counts one and three.1 Together with the mandatory sixty-




1
 Counts one and three grouped as closely related counts, under U.S. SENTENCING
GUIDELINES MANUAL § 3D1.2(b) (2011).
                                             2
month consecutive term on count two, Bell’s effective guideline range was 144 to 165

months and the court sentenced Bell to a total of 165 months’ imprisonment.

       On August 3, 2010, nearly seven months after Bell’s sentencing, the FSA became

law. Pertinent to Bell’s appeal, the FSA raised the amount of cocaine base required to

trigger the 60-month mandatory minimum penalty from five to 28 grams, and authorized

the Sentencing Commission to amend the Guidelines to reduce the sentencing disparity

between powder cocaine and cocaine base violations. Fair Sentencing Act of 2010, Pub.

L. No. 111-220, 124 Stat. 2372 (codified as amended in scattered sections of 21 & 28

U.S.C.). The new amendments went into effect on November 1, 2010, and on June 30,

2011, the Commission decided the amended Guidelines would apply retroactively.

       Thereafter, Bell filed a motion for reduction in sentence under 18 U.S.C.

§ 3582(c)(2), which authorizes a district court to reduce a sentence if a defendant “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).

The parties agreed Bell was entitled to a reduction in sentence, as the amended

Guidelines reduced his adjusted offense level from 23 to 17. An offense level of 17,

when coupled with Bell’s criminal history category of V, produces a range of 46 to 57

months’ imprisonment, and Bell urged the District Court to reduce his sentence on counts

one and three to a term of imprisonment within that range. The Government, however,

argued the pre-FSA mandatory minimum of 60 months on count one continued to apply,

and thus contended the applicable Guideline range for counts one and three was 60



                                             3
months.2 Bell argued the FSA’s more lenient provisions should apply and thus he should

be subject to no mandatory minimum.

       The District Court agreed with the Government and concluded Bell’s Guideline

range for counts one and three was 60 months. Accordingly, the District Court reduced

Bell’s sentence on counts one and three to 60 months, for a total sentence of 120 months,

as the mandatory minimum of 60 months on count two remained unchanged. Bell filed a

timely notice of appeal, contending the District Court erred by failing to apply the more

lenient mandatory minimum provisions of the FSA when considering his § 3582(c)(2)

motion for reduction in sentence.3

                                            II

       The FSA’s mandatory minimum provisions do not apply to defendants sentenced

before its enactment. United States v. Reevey, 631 F.3d 110, 111 (3d Cir. 2010). In

Reevey, the defendants pleaded guilty to possession of cocaine base and were sentenced

to the sixty-month mandatory minimum penalty. Id. at 111–12. The FSA became law

during the pendency of their appeals and the defendants argued that the more lenient

provisions of the FSA should apply. Id. at 113-14. We disagreed and held the FSA’s

mandatory minimum provisions do not apply to defendants sentenced before the

enactment of the FSA. Id. at 115.



2
  “Where a statutorily required minimum sentence is greater than the maximum of the
applicable guideline range, the statutorily required minimum sentence shall be the
guideline sentence.” U.S. SENTENCING GUIDELINES MANUAL § 5G1.1(b) (2011).
3
  The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                             4
       Bell committed his crimes and was sentenced before the enactment of the FSA.

The reduction of his sentence under 18 U.S.C. § 3582(c)(2) does not constitute a

sentencing or resentencing. Dillon v. United States, 130 S. Ct. 2683, 2690 (2010). Thus,

Bell, as a defendant sentenced before the enactment of the FSA, falls squarely within the

rule set forth in Reevey.

       Bell, however, contends that Reevey does not apply to his case. He argues the

logic of our decision in United States v. Dixon, 648 F.3d 195 (3d Cir. 2011), requires the

FSA’s mandatory minimum provisions to apply. In Dixon, we were presented with the

question of which mandatory minimum provision to apply – pre-FSA or FSA – to a

defendant who committed his crime before the FSA’s enactment, but who was sentenced

afterwards. Id. at 196. Looking to the FSA’s text, we noted Congress’s urgency in

directing the Sentencing Commission to amend the Guidelines to achieve consistency

with the FSA’s new mandatory minimums. Id. at 201–02. We reasoned there would be no

urgent need to amend the Guidelines unless Congress intended for the new mandatory

minimum provisions to have immediate effect. Id. Accordingly, we held the FSA’s

mandatory minimum provisions applied to all defendants sentenced after its enactment,

regardless of when the offense conduct occurred. Id. at 203.

       Bell argues the logic of Dixon – that Congress intended to achieve consistency in

the application of the FSA’s mandatory minimum and the amended Guidelines – requires

the FSA’s mandatory minimum provisions to apply anytime the amended Guidelines

entitle the defendant to a reduction in sentence. But Bell has misread our decision in

Dixon. In Dixon, we only considered whether the FSA should apply to defendants who

                                             5
were sentenced after the FSA’s enactment. Accordingly, we conclude the District Court

did not err by applying the pre-FSA’s mandatory minimum provisions.4

                                           III

      For the foregoing reasons, we will affirm the judgment of conviction and sentence.




4
  During the pendency of this appeal, the Supreme Court held, as we did in Dixon, the
FSA applies to all defendants sentenced after its enactment. See Dorsey v. United States,
132 S. Ct. 2321, 2326 (2012). As with Dixon, the rationale of Dorsey does not dictate the
result sought by Bell.
                                           6
