                    Case: 11-15211        Date Filed: 08/01/2012   Page: 1 of 5

                                                                      [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-15211
                                        Non-Argument Calendar
                                      ________________________

                               D.C. Docket No. 1:06-cr-20692-ASG-1



UNITED STATES OF AMERICA,

lllllllllllllllllllllllllllllllllllllll                                   lPlaintiff-Appellee,

                                                versus

VINCENT HOWARD,

lllllllllllllllllllllllllllllllllllllll                               lDefendant-Appellant.

                                     ________________________

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

                                           (August 1, 2012)

Before BARKETT, PRYOR and FAY, Circuit Judges.

PER CURIAM:

         Vincent Howard, proceeding pro se, appeals the district court’s denial of his
              Case: 11-15211     Date Filed: 08/01/2012    Page: 2 of 5

18 U.S.C. § 3582(c)(2) motion for a sentence reduction based on retroactive

Amendment 750 to the Sentencing Guidelines. Amendment 750 took effect on

November 1, 2011, and repromulgated as permanent the temporary emergency

Amendment 748, which, among other things, lowered the base offense levels for

particular crack cocaine quantities listed in U.S.S.G. § 2D1.1(c), pursuant to the

Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372. See U.S.S.G.

App. C, Amends. 748, 750. For the reasons set forth below, we affirm.

                                          I.

      In 2007, Howard was convicted by a jury on one count of possession with

intent to distribute five grams or more of crack cocaine (Count 1), and one count

of possession with intent to distribute cocaine (Count 2), all in violation of 21

U.S.C. § 841(a)(1). The probation officer compiled a presentence investigation

report using the 2006 version of the Guidelines. In calculating Howard’s

guideline range, the probation officer initially assigned him a base offense level of

26 under U.S.S.G. § 2D1.1(c), based in part on the amount of crack cocaine

involved in his offense. Two levels were added for his aggravated role in the

criminal activity, resulting in a total offense level of 28. Based on his prior

convictions, Howard qualified for a criminal history category of IV, which,

combined with the offense level of 28, yielded a guideline range of 110 to 137

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months’ imprisonment. The relevant statute provided a mandatory minimum

sentence of 10 years for Howard’s offense.

       The probation officer also classified Howard as a career offender under

U.S.S.G. § 4B1.1, leading to a guideline range of 360 months to life

imprisonment, but the district court found that a career-offender sentence would be

unreasonable and sentenced Howard to 137 months in prison, the high end of the

original guideline range. In 2008, Howard filed a § 3582(c)(2) motion to reduce

his sentence pursuant to Amendment 706 to the Guidelines, arguing that the

amendment reduced his guideline range to 92 to 115 months’ imprisonment.1 The

district court granted Howard’s motion, but only reduced his sentence to 120

months, as that was the statutory minimum for his offense.

       Subsequently, Howard filed the instant § 3582(c)(2) motion to reduce his

sentence, predicated on Amendment 750. The district court denied Howard’s

motion on the ground that Amendment 750 did not lower his guideline range, as

he was sentenced to the statutory minimum term of imprisonment. Howard now

appeals.

                                             II.



       1
          Amendment 706, like Amendment 750, lowered the base offense levels for certain
quantities of crack cocaine under U.S.S.G. § 2D1.1(c). See U.S.S.G. App. C, Amend. 706.

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      We review de novo “the district court’s legal conclusions regarding the

scope of its authority under the Sentencing Guidelines.” United States v. Moore,

541 F.3d 1323, 1326 (11th Cir. 2008) (quotation omitted). Under § 3582(c)(2),

where a defendant’s term of imprisonment was based on a guideline range “that

has subsequently been lowered by the Sentencing Commission,” a district court

has the discretion to reduce the sentence “if such a reduction is consistent with

applicable policy statements” of the Guidelines. 18 U.S.C. § 3582(c)(2). The

applicable policy statement, found in U.S.S.G. § 1B1.10, lists those guideline

amendments that may apply retroactively to reduce a sentence, and Amendment

750 (parts A and C only) is included in that list. U.S.S.G. § 1B1.10(c). However,

a sentence reduction is not authorized if the listed amendment “does not have the

effect of lowering the defendant’s applicable guideline range” due to the operation

of another guideline or a statutory provision, such as a mandatory minimum term

of imprisonment. Id. § 1B1.10(a)(2)(B); U.S.S.G. § 1B1.10, comment. (n.1(A)).

      We have held that “a sentencing court lacks jurisdiction to consider a

§ 3582(c)(2) motion, even when an amendment would lower the defendant’s

otherwise-applicable Guidelines sentencing range, when the defendant was

sentenced on the basis of a mandatory minimum.” United States v. Mills, 613 F.3d

1070, 1078 (11th Cir. 2010); see also United States v. Williams, 549 F.3d 1337,

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1338-42 (11th Cir. 2008) (holding that a defendant was not eligible for a

§ 3582(c)(2) reduction under Amendment 706 because he was subject to a

statutory minimum, even though he had received a downward departure from the

mandatory minimum).

      In this case, Howard was sentenced to a statutory minimum term of 10 years

(120 months) in prison when the district court granted his first § 3582(c)(2)

motion, and this term also became his guideline range. See U.S.S.G. § 5G1.1(b)

(“Where a statutorily required minimum sentence is greater than the maximum of

the applicable guideline range, the statutorily required minimum sentence shall be

the guideline sentence.”). Because Howard was sentenced on the basis of a

statutory minimum, Amendment 750 had no effect on his guideline range, and the

district court lacked jurisdiction to consider his § 3582(c)(2) motion. See Mills,

613 F.3d at 1078; Williams, 549 F.3d at 1338-42; see also U.S.S.G.

§ 1B1.10(a)(2)(B) and comment. (n.1(A)). Accordingly, we affirm.

      AFFIRMED.




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