            Case: 13-12985   Date Filed: 01/14/2014   Page: 1 of 6




                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-12985
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:07-cr-00048-RBD-DAB-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

LEONARD V. SMITH,
a.k.a. Ray-Ray,

                                                          Defendant-Appellant.

                       ________________________

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

                             (January 14, 2014)

Before HULL, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
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       Leonard Smith, a federal prisoner convicted of crack cocaine offenses,

appeals the district court’s denial of his pro se 18 U.S.C. § 3582(c)(2) motion to

reduce his total 125-month sentence based on Amendment 750 to the Sentencing

Guidelines and the Fair Sentencing Act (“FSA”). The district court concluded that

it lacked authority to grant Smith’s § 3582(c)(2) motion. After review, we affirm. 1

       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. Berry,

701 F.3d 374, 376 (11th Cir. 2012) (stating that a sentence reduction is not

authorized where the amendment “reduces a defendant’s base offense level, but

       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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does not alter the sentencing range upon which his or her sentence was based”

(quoting Moore, 541 F.3d at 1330)); United States v. Glover, 686 F.3d 1203, 1206

(11th Cir. 2012).

      At Smith’s 2007 sentencing, Smith was held responsible for 14.8 grams of

crack cocaine. Based on this drug quantity, Smith’s initial advisory guidelines

range for his two crack cocaine offenses was 57 to 71 months’ imprisonment using

a base offense level of 26. See U.S.S.G. § 2D1.1(c)(7) (2006). Because the

mandatory minimum under 21 U.S.C. § 841(b)(1)(B) (2006) was five years, or 60

months, Smith’s guidelines range became 60 to 71 months. See U.S.S.G.

§ 5G1.1(c)(2) (2006) (prohibiting the district court from imposing a guidelines

sentence below the statutory mandatory minimum sentence).

      At sentencing, the district court granted the government’s § 5K1.1 motion

for substantial assistance and lowered Smith’s offense level by five levels, which

resulted in a guidelines range of 41 to 51 months for Smith’s crack cocaine

offenses. The district court imposed 41-month concurrent sentences for Smith’s

two crack cocaine offenses and a mandatory 84-month consecutive sentence for

Smith’s firearm offense, for a total sentence of 125 months.

      Here, Smith is not eligible for a § 3582(c)(2) sentence reduction based on

Amendment 750 because that amendment did not lower his applicable guidelines

range. Amendment 750, made retroactive through Amendment 759, among other


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things, changed the base offense levels for crack cocaine offenses in U.S.S.G.

§ 2D1.1(c)’s Drug Quantity Tables. See U.S.S.G. app. C, amend. 750 (making

permanent Amendment 748’s temporary, emergency changes). Had Amendment

750 been in effect at the time of Smith’s 2007 sentencing, Smith’s base offense

level would have been 20 rather than 26, see U.S.S.G. § 2D1.1(c)(10) (2013), and

the resulting initial guidelines range would have been 30 to 37 months, not 57 to

71 months. However, because Smith was subject to § 841(b)(1)(B)’s mandatory

minimum 60-month sentence, his sentencing range under the Sentencing

Guidelines would not have been lowered. See U.S.S.G. § 5G1.1(b) (2006) (stating

that when the statutory mandatory minimum exceeds the high end of the applicable

guideline range, the statutory mandatory minimum “shall be the guideline

sentence”). Because Amendment 750 did not have the effect of lowering Smith’s

sentencing range, the district court was not authorized under § 3582(c)(2) to reduce

Smith’s sentence. See Berry, 701 F.3d at 377; Glover, 686 F.3d at 1206.

      Contrary to Smith’s argument, the fact that he received a downward

departure for substantial assistance does not change this outcome. As we

explained in Williams, the district court’s starting point for the substantial

assistance departure is the mandatory minimum sentence, not the guidelines range

initially calculated using the base offense level. See United States v. Williams,

549 F.3d 1337, 1339-41 (11th Cir. 2008). In Williams, this Court concluded that a


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district court’s granting of a § 5K1.1 motion does not “effectively waive[ ] the

statutory mandatory minimum and thus entitle[ ] [the defendant] to a sentence

reduction.” Id. at 1339.

       Likewise, this Court has already rejected the argument that the new

definition of “applicable guideline range” in U.S.S.G. § 1B1.10 from Amendment

759 requires the district court to determine the range before applying the

mandatory minimum sentence. See United States v. Hippolyte, 712 F.3d 535, 540-

41 (11th Cir.), cert. denied, 134 S. Ct. 181 (2013) (“In fine, it is clear that the new

definition of applicable guideline range has nothing to do with mandatory

minimums and does nothing to alter this court’s rule that the applicable guideline

range is the scope of the sentences available to the district court, which could be

limited by a statutorily imposed mandatory minimum ‘guideline sentence.’”

(quotation marks omitted)). Rather, to determine the “applicable guideline range”

as defined by U.S.S.G. § 1B1.10, the court must proceed through all the steps

outlined in § 1B1.1(a) to calculate the defendant’s range, including U.S.S.G.

§ 5G1.1’s consideration of the statutory mandatory minimum sentence. Id. at 541.2

Further, as the commentary to U.S.S.G. § 1B1.10 makes clear, a § 3582(c)(2)



       2
        Smith attempts to distinguish Williams and Hippolyte because they involved application
of U.S.S.G. § 5G1.1(b) rather than § 5G1.1(c). Although those two cases involved a statutory
mandatory minimum that exceeded the initial guidelines range and thus, under § 5G1.1(b),
became the guidelines sentence, their reasoning applies with equal force to cases in which, under
§ 5G1.1(c)(2), the statutory mandatory minimum raised the low end of the range.
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sentence reduction is inappropriate if, as in Smith’s case, an amendment does not

lower his applicable guideline range because of the operation of the statutory

mandatory minimum. U.S.S.G. § 1B1.10, cmt. n.1(A) (2013).

       Finally, this Court also has rejected Smith’s argument that the FSA provides

a basis for granting a § 3582(c)(2) motion. See Hippolyte, 712 F.3d at 542; Berry,

701 F.3d at 377. The FSA is a statutory change, rather than a guidelines

amendment, and thus cannot serve as a basis for a § 3582(c)(2) sentence reduction.

Berry, 701 F.3d at 377. Further, even assuming Smith could bring his FSA claim

in a § 3582(c)(2) motion, his claim still would fail because he was convicted and

sentenced in 2007, and the FSA does not apply retroactively to defendants like

Smith who were sentenced before the FSA’s 2010 enactment. Id.; see also

Hippolyte, 712 F.3d at 542.3 Thus, neither Amendment 750 nor the FSA provided

a basis for the district court to reduce Smith’s sentence under § 3582(c)(2).

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

motion to reduce his sentence.

       AFFIRMED.




       3
         Smith’s argument that the rule of lenity dictates retroactive application of the FSA to all
defendants fails because Smith does not point to an ambiguity in either 18 U.S.C. § 3582(c)(2) or
the FSA on that issue. See United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir.
2005) (explaining that the rule of lenity applies only when the provision remains ambiguous after
the application of the normal rules of construction).
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