                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            July 29, 2014
                                   TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court


 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.                                                         No. 13-3325
                                                  (D.C. No. 5:07-CR-40031-JAR-1)
 DONNELL FRANCIS TIMLEY,                                    (D. Kansas)

        Defendant - Appellant.




                                ORDER AND JUDGMENT*


Before HARTZ, McKAY, and MATHESON, Circuit Judges.


      Defendant Donnell Timley filed a motion to modify his sentence under 18 U.S.C.

§ 3582(c)(2). He had pleaded guilty to possessing with the intent to distribute about 74

grams of cocaine base, and on June 9, 2008, he was sentenced to 240 months’

imprisonment, the statutory minimum sentence under 21 U.S.C. § 841(b)(1)(A) (2006)

       After examining the briefs and the appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App.
P. 32.1 and 10th Cir. R. 32.1.
because the conviction was for more than 50 grams of cocaine base and Defendant had a

prior felony drug conviction. Defendant’s § 3582 motion alleged that the Fair Sentencing

Act (FSA), which reduced the statutory minimum sentences and guideline ranges for

crack-cocaine offenses, applied retroactively and his sentence was eligible for a

reduction. The district court denied the motion. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.

I.     ANALYSIS

       The FSA took effect in 2010. It sought to remedy sentencing disparities “for

defendants sentenced for crimes involving cocaine base and cocaine powder” by

decreasing statutory minimum sentences and requiring the Sentencing Commission to

amend guideline ranges. United States v. Lucero, 713 F.3d 1024, 1026 (10th Cir. 2013)

cert. denied, 134 S. Ct. 287 (2013). In particular, the pre-FSA statutory minimum

sentence for Defendant was 20 years, see 21 U.S.C. § 841(b)(1)(A) (2006); but if he

committed the same offense now, it would be 10 years, see id. § 841(b)(1)(B) (2012).

That change in statutory minimums was not retroactive to sentences imposed before the

effective date of the FSA. See Lucero, 713 F.3d at 1027–28.

       “Section 3582(c)(2) allows a court to modify a sentence previously imposed when

the sentencing range used in the initial sentencing is subsequently lowered by the

Sentencing Commission.” Id. at 1026. But Defendant’s sentencing range has not been

lowered. USSG § 5G1.1(b) provides that the “statutorily required minimum sentence

shall be the guideline sentence” when it “is greater than the maximum of the applicable
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guideline range.” Because Defendant’s otherwise applicable guidelines range was below

the statutory minimum, his guidelines sentence was precisely 240 months under the pre-

FSA law and it remains so today. See id. § 1B1.10 cmt. 1(A) (reduction in sentence

under § 3582(c)(2) is not authorized when amendment to guidelines applies to the

defendant but does not reduce his applicable guideline range because of the operation of a

statutory minimum). As we stated in Lucero, “[A] district court does not have discretion

to sentence below the statutorily mandated minimum sentence that applied when the

defendant was initially sentenced.” 713 F.3d at 1028. Accordingly, Defendant’s motion

was properly denied.

II.   CONCLUSION

      We AFFIRM the decision of the district court.

                                         ENTERED FOR THE COURT


                                         Harris L Hartz
                                         Circuit Judge




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