                   Case: 12-10243          Date Filed: 07/30/2012   Page: 1 of 12

                                                                                    [PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10243
                                        Non-Argument Calendar
                                      ________________________

                                D.C. Docket No. 0:05-cr-60311-JIC-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,

                                                 versus

SMITI LIBERSE,
a.k.a. Smiti Liberisther,

llllllllllllllllllllllllllllllllllllllll                                 Defendant-Appellant.

                                     ________________________

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

                                             (July 30, 2012)



Before CARNES, HULL, and MARTIN, Circuit Judges.
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CARNES, Circuit Judge:

      This is the third decision we have issued in the past month concerning the

application of Amendments 750 and 759 to the sentencing guidelines and the

scope of a district court’s authority to reduce a defendant’s sentence under 18

U.S.C. § 3582(c)(2). In the first two decisions, we held that those amendments did

not authorize a court to reduce a sentence under § 3582(c)(2) if the defendant’s

guidelines range remained the statutory mandatory minimum after the amendments

or if the guidelines range was otherwise not affected by the amendments. See

United States v. Glover, — F.3d —, No. 12-10580, 2012 WL 2814303, at *3–4

(11th Cir. July 11, 2012) (statutory mandatory minimum); United States v.

Lawson, — F.3d —, No. 11-15912, 2012 WL 2866265, at *2–3 (11th Cir. July 13,

2012) (otherwise unchanged guidelines range). Our decisions in Glover and

Lawson establish that “a court cannot use an amendment to reduce a sentence in a

particular case unless that amendment actually lowers the guidelines range in that

case.” Glover, 2012 WL 2814303, at *3.

      This appeal raises a different issue because the pro se appellant’s original

guidelines range of 121 to 151 months was above, and thus not affected by, the

applicable statutory mandatory minimum of 120 months. As a result,

Amendments 750 and 759 would reduce his guidelines range. For those reasons,

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§ 3582(c)(2) gives the district court authority to reduce the sentence in its

discretion. Because the court believed it lacked that authority, we vacate its order

denying the motion for resentencing and remand for the court to determine

whether to exercise its discretion to reduce the sentence.

                                          I.

      In 2006, Smiti Liberse was convicted of conspiracy to possess with intent to

distribute 50 grams or more of crack cocaine. Liberse’s presentence investigation

report held him accountable for at least 50, but less than 150, grams of crack

cocaine. The offense carried a statutory mandatory minimum sentence of 10 years

(or 120 months) imprisonment under 21 U.S.C. § 841(b)(1)(A) (2006). Applying

the 2005 sentencing guidelines, the PSR set his base offense level at 32. See

United States Sentencing Guidelines § 2D1.1(c)(4) (Nov. 2005). He received a 3-

level reduction for acceptance of responsibility, see id. § 3E1.1, making his total

offense level 29. With a criminal history category of IV, his guidelines range was

121 to 151 months imprisonment. Although Liberse was subject to a 120-month

statutory mandatory minimum, that mandatory minimum did not affect the

calculation of his guidelines range because it was less than the 121-month bottom

of the 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

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statutorily required minimum sentence shall be the guideline sentence.”); id. §

5G1.1(c) (“In any other case, the sentence may be imposed at any point within the

applicable guideline range, provided that the sentence . . . is not less than any

statutorily required minimum sentence.”).

      The district court sentenced Liberse to 121 months imprisonment, the

bottom of his guidelines range. The government later filed a Federal Rule of

Criminal Procedure 35(b) motion to reduce Liberse’s sentence based on his

substantial assistance to the government. The district court granted that motion

and reduced his sentence to 97 months, below his guidelines range and below the

statutory mandatory minimum. See 18 U.S.C. § 3553(e) (“Upon motion of the

Government, the court shall have the authority to impose a sentence below a level

established by statute as a minimum sentence so as to reflect a defendant’s

substantial assistance in the investigation or prosecution of another person who

has committed an offense.”); U.S.S.G. § 5K1.1 (“Upon motion of the government

stating that the defendant has provided substantial assistance in the investigation

or prosecution of another person who has committed an offense, the court may

depart from the guidelines.”).

      In 2010, Congress passed the Fair Sentencing Act of 2010, Pub. L. 111-220,

124 Stat. 2372, which “increased the drug amounts triggering mandatory

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minimums for crack trafficking offenses from 5 grams to 28 grams in respect to

the 5-year minimum and from 50 grams to 280 grams in respect to the 10-year

minimum,” Dorsey v. United States, — U.S. —, 132 S.Ct. 2321, 2329 (2012); see

21 U.S.C. § 841. “[T]he Fair Sentencing Act instructed the 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.’” Dorsey, 132 S.Ct. at 2329 (quoting Fair

Sentencing Act § 8(2), 124 Stat. at 2374). The Sentencing Commission then

promulgated Amendment 750 to the guidelines, which revised the crack cocaine

quantity tables listed in U.S.S.G. § 2D1.1(c), to comply with the Fair Sentencing

Act’s instructions. See U.S.S.G. App. C, amend. 750 (Nov. 2011). The

Commission made Amendment 750 retroactively applicable by Amendment 759.

See U.S.S.G. App. C, amend. 759 (Nov. 2011).

      In light of those developments, Liberse filed a pro se motion under 18

U.S.C. § 3582(c)(2) to reduce his sentence, contending that Amendment 750 to the

sentencing guidelines had lowered his guidelines range to 70 to 87 months

imprisonment. The district court denied the motion. The court reasoned that

because Liberse was originally sentenced before the Fair Sentencing Act went into

effect, he was subject to the same 120-month statutory mandatory minimum that

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he had been when he was originally sentenced. And because “[t]he Sentencing

Commission has no authority to alter a statutory mandatory penalty,” the district

court concluded that it lacked authority to reduce Liberse’s sentence. He contends

that the district court does have authority to reduce his sentence, arguing that

Amendment 750 lowered his guidelines range to 70 to 87 months in prison.1

                                               II.

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

once it has been imposed . . . .” United States v. Williams, 549 F.3d 1337, 1339

(11th Cir. 2008). There is an “exception . . . 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 marks

omitted); accord 18 U.S.C. § 3582(c)(2). When that has happened, “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 marks and alteration



       1
          We review de novo a district court’s legal conclusions about the sentencing guidelines
and the scope of its authority under 18 U.S.C. § 3582(c)(2). United States v. Davis, 587 F.3d
1300, 1303 (11th Cir. 2009). We review only for clear error the factual findings underlying the
district court’s legal conclusions. Id.

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

      A court, however, “cannot use an amendment to reduce a sentence in a

particular case unless that amendment actually lowers the guidelines range in that

case.” Glover, 2012 WL 2814303, at *3. We have explained that “[t]he purpose

of § 3582(c)(2) is to give a defendant the benefit of a retroactively applicable

amendment to the guidelines. . . . But he is not to receive a lower sentence than he

would have received if the amendment had been in effect at the time of his

sentencing.” Id. For that reason, “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,” if the defendant’s guidelines

range was, and remains, the statutory mandatory minimum under U.S.S.G. §

5G1.1(b) (Nov. 2011). Id. (quotation marks omitted); accord United States v.

Mills, 613 F.3d 1070, 1077–78 (11th Cir. 2010); 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.”).

      When a retroactively applicable guidelines amendment lowers the

guidelines range in a case, a district court usually may not reduce a defendant’s

sentence to a term below the amended guidelines range. See U.S.S.G. §

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1B1.10(b)(2)(A) (Nov. 2011). But there is an exception. Section 1B1.10(b)(2)(B)

of the sentencing guidelines, as revised by Amendment 759, states:

      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.

Id. § 1B1.10(b)(2)(B). Expressly included within this exception are government

substantial assistance motions under U.S.S.G. § 5K1.1 or Rule 35(b), like the one

the government filed in Liberse’s case. U.S.S.G. § 1B1.10 cmt. n.3.

      The government contends that Liberse was sentenced based on the 120-

month statutory mandatory minimum, even though he received a Rule 35(b)

substantial assistance reduction. So, according to the government, the district

court lacks authority to reduce Liberse’s sentence because Amendment 750 did not

lower his applicable guidelines range. See id. § 1B1.10(a)(2)(B); see also United

States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008) (“Where a retroactively

applicable guideline amendment reduces a defendant’s base offense level, but does

not alter the sentencing range upon which his or her sentence was based,

§ 3582(c)(2) does not authorize a reduction in sentence.”).

      We reject the government’s contention. Liberse was sentenced to 121

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months based on an original guidelines range of 121 to 151 months. Amendment

750’s revisions to the crack cocaine quantity tables lowered Liberse’s base offense

level from 32 to 26, making his total offense level 23 with his 3-level acceptance-

of-responsibility reduction. Based on that new offense level and a criminal history

category of IV, his amended guidelines range would be 70 to 87 months, unless

the applicable statutory minimum is above the bottom of the amended guidelines

range. See U.S.S.G. § 5G1.1(b) (stating that the statutory minimum sentence is

the guidelines sentence if the statutory minimum sentence exceeds the otherwise

applicable guidelines range); id. § 5G1.1(c). In light of the Fair Sentencing Act,

however, it is not clear what Liberse’s statutory mandatory minimum is now.

      As we have already discussed, the Fair Sentencing Act “increased the drug

amounts triggering mandatory minimums for crack trafficking offenses from 5

grams to 28 grams in respect to the 5-year minimum and from 50 grams to 280

grams in respect to the 10-year minimum.” Dorsey, 132 S.Ct. at 2329; see 21

U.S.C. § 841(b)(1). The Supreme Court in Dorsey held that the Fair Sentencing

Act’s lower mandatory minimums apply to defendants who committed a crack

cocaine crime before the Act went into effect but whom the district court did not

sentence for the first time until after it went into effect. 132 S.Ct. at 2326. The

Court did not decide, however, whether the Fair Sentencing Act applies to a

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defendant, like Liberse, who was sentenced before the Act went into effect and

who files a § 3582(c)(2) motion to reduce his sentence after the Act’s effective

date. And we do not have to decide that issue either, because it does not matter to

the outcome of this appeal.

      Here’s why. If the Fair Sentencing Act does apply in a § 3582(c)(2)

proceeding in these circumstances, Liberse would be subject to a 5-year mandatory

minimum because he conspired to possess with intent to distribute at least 50, but

less than 150, grams of crack cocaine. See 21 U.S.C. § 841(b)(1)(B)(iii)

(requiring a 5-year mandatory minimum for possession with intent to distribute at

least 28 grams, but less than 280 grams, of crack cocaine). Liberse’s amended

guidelines range after Amendment 750 would then be 70 to 87 months. However,

if the Act does not apply, Liberse would be subject to the same 10-year (or 120-

month) mandatory minimum that he was subject to at his original sentencing. See

21 U.S.C. § 841(b)(1)(A) (2006) (requiring a 10-year mandatory minimum for

possession with intent to distribute at least 50 grams of crack cocaine). And that

mandatory minimum would be his amended guidelines range because it is greater

than the top of his otherwise applicable amended guidelines range of 70 to 87

months. See U.S.S.G. § 5G1.1(b).

      So, whether the Fair Sentencing Act applies or not, Amendment 750 lowers

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Liberse’s guidelines range. Both a guidelines range of 70 to 87 months (if the Fair

Sentencing Act applies) and a guidelines range of 120 months (if the Fair

Sentencing Act does not apply) are below Liberse’s original guidelines range of

121 to 151 months. Because Amendment 750 does lower Liberse’s guidelines

range, the district court erred by concluding that it lacked the authority to reduce

his sentence under § 3582(c)(2). See United States v. Bravo, 203 F.3d 778, 780

(11th Cir. 2000) (“[A] district court has discretion to reduce the term of

imprisonment of an already incarcerated defendant when that defendant was

sentenced based on a sentencing range that was subsequently lowered by the

Sentencing Commission . . . .”). Also, because Liberse received a Rule 35(b)

substantial assistance reduction of his original sentence, “a reduction comparably

less than the amended guideline range . . . may be appropriate.” U.S.S.G. §

1B1.10(b)(2)(B). For these reasons, we vacate the district court’s denial of

Liberse’s § 3582(c)(2) motion and remand for the district court to consider the

extent to which, if any, Liberse’s sentence should be reduced. We leave it to the

district court in the first instance to decide whether, in light of Dorsey, the Fair

Sentencing Act applies to this case.2


       2
         The issue of whether the Fair Sentencing Act applies in a § 3582(c)(2) proceeding to a
defendant who was sentenced before the Act went into effect is presented in another case
currently pending before this Court. An order has been issued in that case indicating it will be

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       VACATED AND REMANDED.




scheduled for oral argument after supplemental briefs are filed on this issue. See United States v.
Hippolyte, No. 11-15933.

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