                    Case: 12-10027         Date Filed: 04/01/2013   Page: 1 of 3


                                                                        [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10027
                                        Non-Argument Calendar
                                      ________________________

                              D.C. Docket No. 2:01-cr-14029-DMM-1



UNITED STATES OF AMERICA,

lllllllllllllllllllllllllllllllllllllll                                    lPlaintiff-Appellee,

                                                 versus

HAROLD BEAUVAIS,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

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

                                            (April 1, 2013)

Before CARNES, HULL, and MARTIN, Circuit Judges.

PER CURIAM:
              Case: 12-10027    Date Filed: 04/01/2013   Page: 2 of 3


      Harold Beauvais was convicted by jury of one count of possessing with

intent to distribute 50 or more grams of crack cocaine, in violation of 21 U.S.C. §

841(a)(1). The presentence investigation report concluded that Beauvais was

responsible for 50.9 grams of crack cocaine. Based on that quantity, the PSR

assigned a base offense level of 32, which became his total offense level because

no other adjustments applied. See United States Sentencing Guidelines §

2D1.1(c)(4) (Nov. 2001). Beauvais’ criminal history category was I, resulting in a

guidelines range of 121 to 151 months imprisonment. Beauvais was also subject

to a mandatory minimum sentence of 240 months because he had a prior drug

conviction. See 21 U.S.C. § 841(b)(1)(A) (2001). Because the statutory

mandatory minimum sentence was greater than the otherwise applicable guidelines

range, the statutory mandatory minimum of 240 months became Beauvais’

guidelines range. See U.S.S.G. § 5G1.1(c)(2). In 2002 the district court sentenced

him to the mandatory minimum term of 240 months imprisonment.

      In 2011 Beauvais, acting pro se, filed a motion to reduce his sentence under

18 U.S.C. § 3582(c)(2), contending that Amendment 750 to the sentencing

guidelines and the Fair Sentencing Act of 2010 had reduced his guidelines range.

The district court denied that motion, concluding that Beauvais was not eligible




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for a sentence reduction under § 3582(c)(2) because he was subject to a mandatory

minimum sentence of 240 months. This is Beauvais’ appeal.

      Beauvais contends that Amendment 750 lowered his base offense level and

that under the Fair Sentencing Act, he would be subject to a mandatory minimum

of only 120 months instead of 240 months. But even if the Fair Sentencing Act

would lower the mandatory minimum sentence applicable to him, that Act does

not apply retroactively to defendants like Beauvais who were sentenced before its

enactment in 2010. See United States v. Hippolyte, — F.3d —, No. 11-15933,

2013 WL 978695, at *5 (11th Cir. 2013). “[W]hen a defendant’s sentence is based

on a statutory mandatory minimum under 21 U.S.C. § 841(b)(1) that is above the

applicable guidelines range, Amendment 750 does not lower that guidelines

sentence, and the defendant is not eligible for a § 3582(c)(2) sentence reduction.”

Id. at *3 (quotation marks omitted). Because Beauvais’ sentence of 240 months

was based on the statutory mandatory minimum under 21 U.S.C. § 841(b)(1)(A),

which is above the otherwise applicable guidelines range, Amendment 750 did not

lower Beauvais’ guidelines range and he is not eligible for a sentence reduction

under § 3582(c)(2).

      AFFIRMED.




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