                Case: 12-12765     Date Filed: 02/11/2013   Page: 1 of 8

                                                                [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 12-12765
                               Non-Argument Calendar
                             ________________________

                        D.C. Docket No. 3:06-cr-00062-MCR-1



UNITED STATES OF AMERICA,

                                                                     Plaintiff-Appellee,

versus

TABITHA DIXON,

                                                                Defendant-Appellant.

                             ________________________

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

                                  (February 11, 2013)

Before CARNES, BARKETT, and FAY, Circuit Judges.

PER CURIAM:

         Tabitha Dixon, a federal prisoner who pled guilty to conspiracy to distribute

and possess with intent to distribute cocaine base and knowingly using and
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carrying a firearm during and in relation to a drug trafficking crime, appeals, pro

se, the district court’s denial of her 18 U.S.C. § 3582(c)(2) motion for a sentence

reduction based on Amendment 750 to the Sentencing Guidelines. On appeal,

Dixon argues that she was entitled to a sentence reduction based on her newly

amended guideline range and that the district court failed to consider that her

statutory mandatory minimum sentence was also amended by the Fair Sentencing

Act of 2010 (“FSA”). For the reasons set forth below, we vacate and remand for

the district court to reconsider whether a sentence reduction is warranted.

                                          I.

      In 2006, Dixon pled guilty to conspiracy to possess with intent to distribute

500 grams or more of cocaine and 5 grams or more of cocaine base, in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii), (b)(1)(B)(iii) and 846 (“Count One”), and

carrying and use of a firearm during and in relation to a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1)(A) (“Count Two”).

      The presentence investigation report (“PSI”) indicated that Dixon was

responsible for 2.8 kilograms of cocaine base. Because the drug quantity exceeded

1.5 kilograms of cocaine base, the probation officer assigned a base offense level

of 38 pursuant to U.S.S.G. § 2D1.1(c). After a three-level reduction for acceptance

of responsibility, Dixon’s total offense level was 35. The offense level of 35 and

her criminal history category of I resulted in a guideline range of 168 to 210


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months’ imprisonment. Further, as to Count One, Dixon faced a mandatory

minimum 60-month sentence, and as to Count Two, she faced a mandatory

consecutive 60-month sentence.

      Prior to sentencing, the government filed a motion for a sentence reduction

under U.S.S.G. § 5K1.1, indicating that Dixon had provided substantial assistance

to the government. In consideration of Dixon’s cooperation, the court granted a

substantial assistance reduction as to the drug charge (Count One), but denied a

reduction as to the firearm charge (Count Two). The court noted that, absent the

§ 5K1.1 motion, it would have imposed a sentence “somewhere in the mid[-]point”

of Dixon’s guideline range of 168 to 210 months’ imprisonment, “which probably

would have been about 180 months.” Ultimately, in August 2006, the court

imposed a 120-month total sentence, consisting of a 60-month sentence as to Count

One with a mandatory consecutive 60-month sentence as to Count Two.

      In March 2008, Dixon filed a § 3582(c)(2) motion based on Amendment 706

to the Sentencing Guidelines. Through counsel, she argued that Amendment 706

lowered her base offense level from 38 to 36, which resulted in a lower guideline

range of 135 to 168 months’ imprisonment.

      In December 2008, the district court denied the § 3582(c)(2) motion. The

court noted that the “mid-point” of Dixon’s reduced guideline range of 135 to 168

months’ imprisonment was still 30 months greater than the sentence that she


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received after her substantial assistance reduction. The court found that, “[b]ased

on the facts supporting the original sentence, including [Dixon’s] substantial

assistance, the court would not have reduced [her] sentence below 120 months

even after [the] application of Amendment 706.”

      In November 2011, Dixon filed the instant pro se § 3582(c)(2) motion based

on Amendment 750. In her motion, Dixon argued that she should receive a

sentence reduction based on post-sentencing, retroactive changes to the drug

quantity tables in § 2D1.1. Dixon noted that she initially received a 67% reduction

in her sentence as to the drug charge based on the government’s § 5K1.1 motion.

She thus asserted that, as to the drug charge, she was entitled to a comparable 67%

reduction below her amended guideline range. Accordingly, she requested that the

district court reduce her sentence to 90 months’ imprisonment.

      The district court denied Dixon’s § 3582(c)(2) motion, noting that it had

considered the policy statement set forth in U.S.S.G. § 1B1.10 and the § 3553(a)

sentencing factors, “to the extent they are applicable.” Additionally, without

further explanation, the court found that Amendment 750 did not result in a change

to Dixon’s “guideline range and the previous sentence imposed.”

                                         II.




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      We review de novo the district court’s determination that a defendant is not

eligible for a sentence reduction under § 3582(c)(2). United States v. Glover, 686

F.3d 1203, 1206 (11th Cir. 2012).

      “As a general rule, district courts may not modify a term of imprisonment

once it has been imposed, except in specific circumstances delineated in 18 U.S.C.

§ 3582(c).” United States v. Williams, 549 F.3d 1337, 1339 (11th Cir. 2008). One

such exception is 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.” Id. (quotation omitted); see also 18 U.S.C.

§ 3582(c)(2). In such a case, “the court may reduce the term of imprisonment,

after considering the factors set forth in 18 U.S.C. § 3553(a) to the extent that they

are applicable, if such a reduction is consistent with applicable policy statements

issued by the Sentencing Commission.” Williams, 549 F.3d at 1339 (quotation and

alteration omitted); see 18 U.S.C. § 3582(c)(2).

      Amendment 750 to the Sentencing Guidelines, made retroactively applicable

by Amendment 759, makes permanent the temporary emergency Amendment 748,

which revised the crack cocaine quantity tables listed in U.S.S.G. § 2D1.1(c)

pursuant to the FSA. See U.S.S.G. App. C, Amend. 750, Reason for Amend.;

U.S.S.G. App. C, Amend. 759. Subsection 1B1.10(b)(2)(B) of the Sentencing

Guidelines, as revised by Amendment 759, states:


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      Exception for Substantial Assistance.—If the term of imprisonment
      imposed was less than the term of imprisonment provided by the
      guideline range applicable to the defendant at the time of sentencing
      pursuant to a government motion to reflect the defendant’s substantial
      assistance to authorities, a reduction comparably less than the
      amended guideline range determined under subdivision (1) of this
      subsection may be appropriate.

U.S.S.G. § 1B1.10(b)(2)(B) (2011). Government motions for substantial

assistance under § 5K1.1 are explicitly listed as being included within the

exception. U.S.S.G. § 1B1.10, comment. (n.3).

      Nevertheless, in a § 3582(c)(2) proceeding, the district court lacks the

authority to reduce a defendant’s sentence when the amended guideline “does not

have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G.

§ 1B1.10(a)(2)(B). A reduction is not authorized if the amendment does not lower

a defendant’s applicable guidelines range “because of the operation of another

guideline or statutory provision (e.g., a statutory mandatory minimum term of

imprisonment).” U.S.S.G. § 1B1.10, comment. (n.1(A)).

      As an initial matter, because it appears that the district court erred for the

reasons discussed below, we decline to review the merits of Dixon’s FSA

argument.

      In denying Dixon’s § 3582(c)(2) motion, the district court clearly erred in

concluding that Amendment 750 did not have the effect of reducing her guideline

range. Dixon’s original base offense level was 38, and after a 3-level reduction for


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acceptance of responsibility, she was assigned a total offense level of 35. Her

resulting guideline range was 168 to 210 months’ imprisonment as to the drug

count with a 60-month mandatory consecutive sentence as to the firearm count.

Had Amendment 750 been in effect at the time of Dixon’s sentencing, she would

have received a base offense level of 36 based on the 2.8 kilograms of cocaine base

for which she was held responsible. See U.S.S.G. App. C, Amend. 750, Pt. A,

cross referencing U.S.S.G. App. C, Amend. 748; U.S.S.G. § 2D1.1(c)(2) (2011).

After the reduction for acceptance of responsibility, her total offense level would

have been 33, which, combined with her criminal history category of I, would have

yielded a reduced guideline range of 135 to 168 months’ imprisonment as to the

drug count.

      The government suggests that, even though Dixon’s earlier motion for a

sentence reduction based on Amendment 706 was denied, her base offense level

was reduced to 36 under that Amendment. Thus, the government contends that

Dixon’s instant § 3582(c)(2) motion was properly denied because Amendment 750

did not provide for a further reduction in her base offense level. However, because

the district court denied Dixon’s § 3582(c)(2) motion based on Amendment 706,

her base offense level as of her last sentencing proceeding was 38. In denying her

prior § 3582(c)(2) motion, the district court found that, based on the underlying

facts and circumstances of the case, Dixon was not entitled to a further reduction


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below the sentence that she received for her substantial assistance. In considering,

upon remand, whether to grant a sentence reduction based on Amendment 750, the

district court may reach a similar conclusion that a further sentence reduction is not

warranted. Alternatively, the district court may decline to grant Dixon a

comparable substantial assistance reduction below her amended guideline range

because, regardless of the applicable guideline range, her assistance to the

government did not warrant a sentence below the 60-month mandatory minimum

sentence applicable to Count One. However, in denying the instant § 3582(c)(2)

motion, the district court did not address these issues because it appears to have

erroneously determined that Amendment 750 did not have the effect of lowering

Dixon’s applicable guideline range. For the foregoing reasons, we vacate and

remand to the district court to reconsider whether Dixon was entitled to a sentence

reduction comparable to the reduction that she received pursuant to the

government’s § 5K1.1 motion.

      VACATED AND REMANDED.




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