             Case: 14-10245    Date Filed: 07/16/2014   Page: 1 of 4


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 14-10245
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 8:89-cr-00247-EAK-EAJ-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

ISNY JOSEPH,

                                                            Defendant-Appellant.

                         ________________________

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

                                 (July 16, 2014)

Before TJOFLAT, MARCUS and JORDAN, Circuit Judges.

PER CURIAM:

      Isny Joseph, a federal prisoner, appeals the district court’s denial of his

motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) and Amendment 750

to the Sentencing Guidelines. At the time he was sentenced, Joseph was subject to
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a ten-year statutory minimum sentence. See 21 U.S.C. § 841(b)(1)(A)(iii) (2009).

Joseph argues that the then-applicable minimum sentence should not be applied in

his § 3582(c)(2) proceeding, but acknowledges that his argument is foreclosed by

our precedent. After careful review, we affirm.

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

its authority under § 3582(c)(2). United States v. Lawson, 686 F.3d 1317, 1319

(11th Cir.), cert. denied, 133 S.Ct. 568 (2012). Section 3582(c)(2) provides that a

court may reduce a defendant’s sentence where the defendant is 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); U.S.S.G. §

1B1.10(a)(1). A sentence reduction is not authorized under § 3582(c)(2) where it

does not have the effect of lowering a defendant’s “applicable guideline range.”

U.S.S.G. § 1B1.10(a)(2)(B). Further, a court usually cannot reduce a defendant’s

term of imprisonment below the low end of the amended guideline range. Id. §

1B1.10(b)(2)(A), (B).

      In Dorsey v. United States, the Supreme Court held that the Fair Sentencing

Act’s (“FSA”) reduced statutory mandatory minimums apply to defendants who

committed crack cocaine offenses before August 3, 2010, but were sentenced after

the date the FSA went into effect. 567 U.S. ___, 132 S.Ct. 2321, 2326 (2012).

However, in United States v. Berry, we rejected an argument that a defendant


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sentenced before the FSA was entitled to a reduction under § 3582(c)(2) in light of

the FSA’s statutory amendments, determining that the FSA was not a guidelines

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

Congress. 701 F.3d 374, 377 (11th Cir. 2012). We agreed with “every other

circuit to address the issue” that there was no evidence that Congress intended the

FSA to apply to defendants who had been sentenced before the FSA’s August 3,

2010 enactment date. Id. We further reasoned that nothing in Dorsey suggested

that the FSA’s new mandatory minimums should apply to defendants, like Berry,

who were originally sentenced before the FSA’s effective date. Id. at 377-78.

      In United States v. Hippolyte, we reaffirmed our conclusion in Berry that the

Supreme Court’s decision in Dorsey did not suggest that the FSA should apply to

defendants who were sentenced before the FSA’s effective date. 712 F.3d 535,

542 (11th Cir. 2013). We explained that, because the FSA did not apply to

Hippolyte’s case, the statutory minimums that applied were the ones that were in

place at the time when he was sentenced in 1996. Id.

      Under Berry and Hippolyte, it is clear that the statutory sentencing

provisions in effect at the time of Joseph’s initial sentencing remain in effect today.

Joseph’s present ten-year sentence equals the then-applicable statutory minimum

sentence. Therefore, Joseph is ineligible to receive a lower sentence, and the

district court correctly denied his motion for a sentence reduction.


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AFFIRMED.




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