United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Submitted April 16, 2013           Decided August 16, 2013

                       No. 12-3018

               UNITED STATES OF AMERICA,
                       APPELLEE

                             v.

                    DARREN SWANGIN,
                      APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:09-cr-00049-1)


   A.J. Kramer, Federal Public Defender, and Tony Axam Jr.,
Assistant Federal Public Defender, were on the brief for
appellant. Lisa B. Wright, Assistant Federal Public Defender
entered an appearance.

 Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman,
Suzanne G. Curt, Carolyn K. Kolben, and Katherine M. Kelly,
Assistant U.S. Attorneys, were on the brief for appellee.

  Before: GARLAND, Chief Judge, and ROGERS and GRIFFITH,
Circuit Judges.

  Opinion for the Court filed by Chief Judge GARLAND.
                               2

     GARLAND, Chief Judge: Darren Swangin appeals from the
district court’s partial denial of his motion for a sentence
reduction under 18 U.S.C. § 3582(c)(2). For the reasons set
forth below, we affirm the judgment of the district court.1

                                I

     In April 2009, Swangin pled guilty to possessing with intent
to distribute 50 grams or more of cocaine base. In his plea
agreement, he acknowledged that the offense involved 63.9
grams of crack cocaine. Swangin was sentenced two months
later, in June 2009.

     At the time of Swangin’s sentencing, offenses involving 50
grams or more of crack cocaine carried a statutory minimum
sentence of 120 months. See 21 U.S.C. § 841(b)(1)(A)(iii)
(2006). According to Swangin’s presentence report, a
sentencing range of 140 to 175 months’ imprisonment was
appropriate under the then-applicable United States Sentencing
Guidelines, given Swangin’s offense and criminal history.
Presentence Investigation Report, at ¶ 81 (June 18, 2009).
During Swangin’s sentencing hearing, the district court
expressed discomfort with sentencing Swangin to the Guidelines
range, in light of the Guidelines’ disparate treatment of crack
and powder cocaine offenses. Sentencing Hr’g Tr. 2-4 (June 25,
2009). Recognizing that it could not sentence Swangin below
the 120-month mandatory minimum, the district court imposed
a sentence of 125 months: “slightly above the mandatory”
minimum, the court said, because of the “kind of guns” Swangin
possessed at the time of the offense and because of his criminal

    1
      This case was considered on the record from the United
States District Court for the District of Columbia and on the
briefs filed by the parties. See FED. R. APP. P. 34(a)(2); D.C.
CIR. R. 34(j).
                               3

history, which reflected an “almost non-stop criminal
existence.” Id. at 11.

    More than a year after Swangin was sentenced, Congress
passed the Fair Sentencing Act of 2010, Pub. L. No. 111-220,
124 Stat. 2372. Under the Act, 50 grams of crack cocaine is no
longer the threshold for the 120-month mandatory minimum
sentence. Instead, 280 grams is the threshold for 120 months,
while offenses involving at least 28 but fewer than 280 grams
now carry a 60-month mandatory minimum. Id. § 2(a) (codified
as amended at 21 U.S.C. § 841(b)(1)(A)(iii), (B)(iii)).

     The Fair Sentencing Act directed the United States
Sentencing Commission to “make such conforming amendments
to the Federal sentencing guidelines as the Commission
determines necessary to achieve consistency with other
guideline provisions and applicable law.” Id. § 8. The
Commission responded by reducing the base offense levels for
quantities of crack cocaine, first on an emergency basis and then
through a permanent amendment. See U.S. SENTENCING
GUIDELINES MANUAL (USSG) App. C, Vol. III, Amend. 750
(2011). The Commission also determined that the new base
offense levels should apply retroactively in sentence reduction
proceedings under 18 U.S.C. § 3582(c)(2). USSG App. C, Vol.
III, Amend. 759 (2011).

    In February 2012, Swangin filed a motion pursuant to
§ 3582(c)(2), which allows the court to “reduce the term of
imprisonment” for “a defendant 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). The district court found that, under the
amended Guidelines, Swangin’s recommended range was 100
to 125 months. Swangin requested that the court reduce his
sentence to 100 months, the bottom end of his amended range.
                                   4

The district court reduced his sentence to 120 months, but found
that it could go no lower because Swangin “is subject to a
mandatory minimum sentence of 120 months based on the
statutory mandatory minimums in effect at the time of his
offense and sentencing.” Order Regarding Mot. for Sentence
Reduction, at 1 (Mar. 7, 2012).

                                   II

    Swangin’s only argument on appeal is that the district court
should have applied the Fair Sentencing Act’s new 60-month
mandatory minimum retroactively in his § 3582(c)(2)
proceeding.2 This argument is foreclosed by our decisions in
United States v. Bigesby, 685 F.3d 1060 (D.C. Cir. 2012), and
United States v. Fields, 699 F.3d 518 (D.C. Cir. 2012). Both
Bigesby and Fields held that a defendant convicted and
sentenced prior to the Fair Sentencing Act’s effective date
cannot benefit from the Act’s new mandatory minimums in a
subsequent proceeding.3 See Bigesby, 685 F.3d at 1066 (“We
agree with every circuit court to address the issue that there is


     2
       In a post-argument letter, counsel for Swangin asked the court
to hold that perpetuation of the prior mandatory minimum would
violate equal protection principles of the Fifth Amendment. Letter
from T. Axam to Clerk of Court (June 27, 2013). In support, the letter
cited the recent decision of a panel of the Sixth Circuit in United
States v. Blewett, 719 F.3d 482 (6th Cir. 2013). In a subsequent letter,
counsel noted that the Sixth Circuit had vacated the Blewett panel
decision and granted a petition for rehearing en banc. Letter from T.
Axam, Jr. to Clerk of Court (July 15, 2013); see Order, United States
v. Blewett, Nos. 12-5226/5582, at 1 (6th Cir. July 11, 2013). We do
not address this contention because Swangin did not raise it until after
oral argument.
     3
       In both Bigesby and Fields, the subsequent proceeding was the
direct appeal of the defendant’s sentence.
                               5

simply no evidence that Congress intended the [Fair Sentencing
Act] to apply to defendants who had been sentenced prior to the
August 3, 2010 date of the Act’s enactment.” (internal quotation
marks omitted)); Fields, 699 F.3d at 522. Accordingly, because
Swangin was convicted and sentenced before the Fair
Sentencing Act’s August 3, 2010 effective date, he cannot
benefit from retroactive application of the mandatory
minimums.

     That Swangin received a § 3582(c)(2) sentence reduction
after the Fair Sentencing Act became effective does not render
Bigesby and Fields any less controlling. The Supreme Court’s
decision in Dillon v. United States, 130 S. Ct. 2683 (2010),
makes clear that § 3582(c)(2) proceedings are not new
sentencing proceedings. Section 3582(c)(2), the Court held,
“does not authorize a sentencing or resentencing proceeding.”
130 S. Ct. at 2690. Rather, it “authorize[s] only a limited
adjustment to an otherwise final sentence and not a plenary
resentencing proceeding.” Id. at 2691. Accordingly, that
Swangin received a § 3582(c)(2) reduction after the Fair
Sentencing Act’s enactment does not change the fact that he was
sentenced before its enactment and is therefore subject to the
rule announced in our prior decisions.

     Nor does Dorsey v. United States, 132 S. Ct. 2321 (2012),
cited by Swangin, suggest a different outcome. In Dorsey, the
Supreme Court held that the Fair Sentencing Act’s reduced
mandatory minimums apply to defendants sentenced after the
Fair Sentencing Act’s effective date, even if they were convicted
before that date. In so holding, the Court recognized that this
created a disparity, albeit a lawful one, between defendants
sentenced after the Fair Sentencing Act’s effective date and
defendants (like Swangin) who were sentenced before that date
and thus cannot benefit from the reduced mandatory minimums:
                               6

       We . . . recognize that application of the new minimums
       to pre-Act offenders sentenced after August 3 will create
       a new set of disparities. But those disparities, reflecting
       a line-drawing effort, will exist whenever Congress
       enacts a new law changing sentences (unless Congress
       intends re-opening sentencing proceedings concluded
       prior to a new law’s effective date). We have explained
       how in federal sentencing the ordinary practice is to
       apply new penalties to defendants not yet sentenced,
       while withholding that change from defendants already
       sentenced. And we have explained how, here, continued
       application of the old . . . minimums to those pre-Act
       offenders sentenced after August 3 would make matters
       worse. We consequently conclude that this particular
       new disparity (between those pre-Act offenders already
       sentenced and those not yet sentenced as of August 3)
       cannot make a critical difference.

Id. at 2335 (emphasis added) (citations omitted).

     In Fields, the court expressly addressed the consistency
between this circuit’s rule and the Supreme Court’s opinion in
Dorsey. The court noted that Bigesby, decided one day after the
Supreme Court’s opinion in Dorsey, had “squarely held that the
[Fair Sentencing Act] is inapplicable to offenders . . . who were
sentenced before passage of the statute.” 699 F.3d at 522. And
it concluded that “Dorsey actually confirms our decision in
Bigesby, for the Court expressly acknowledged that it was
creating a disparity ‘between pre-Act offenders sentenced before
[the Fair Sentencing Act’s effective date] and those sentenced
after that date.’” Id. (quoting Dorsey, 132 S. Ct. at 2335).

     Finally, we note that every circuit that has addressed the
question post-Dorsey has likewise concluded that courts cannot
retroactively apply the Fair Sentencing Act’s new mandatory
                                  7

minimums in § 3582(c)(2) proceedings to defendants who were
sentenced before the Act’s effective date.4

                                 III

    Because our decisions in United States v. Bigesby and
United States v. Fields preclude retroactive application of the
new statutory mandatory minimum to a defendant who was
sentenced before its enactment, the judgment of the district court
is

                                                           Affirmed.




     4
       See United States v. Reeves, 717 F.3d 647, 650-51 (8th Cir.
2013); United States v. Kelly, 716 F.3d 180, 181 (5th Cir. 2013);
United States v. Belt, 2013 WL 1715577, at *1 (4th Cir. Apr. 22,
2013) (unpublished per curiam); United States v. Pratt, 2013 WL
864464, at *1-2 (3d Cir. Mar. 8, 2013) (unpublished per curiam);
United States v. Lucero, 713 F.3d 1024, 1027-28 (10th Cir. 2013);
United States v. Augustine, 712 F.3d 1290, 1293-95 (9th Cir. 2013);
United States v. Hippolyte, 712 F.3d 535, 542 (11th Cir. 2013); United
States v. Robinson, 697 F.3d 443, 444-45 (7th Cir. 2012); United
States v. Humphries, 502 F. App’x 46, 47-48 (2d Cir. 2012)
(unpublished summary order). As noted above, a panel of the Sixth
Circuit held to the contrary in Blewett, 719 F.3d 482, but the Sixth
Circuit has since vacated that decision pending rehearing en banc. See
supra footnote 2.
