                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                 No. 12-3007
                                _____________

                       UNITED STATES OF AMERICA

                                       v.

                       DEVIN ANTONIO HOCKADAY,
                              a/k/a STEAL


                               Devin Antonio Hockaday,
                                          Appellant
                                _____________

                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                           (D.C. No. 4-06-cr-00144-002)
                  District Judge: Honorable C. Darnell Jones, II
                                _______________

                   Submitted Under Third Circuit LAR 34.1(a)
                                May 17, 2013

           Before: SMITH, FISHER, and CHAGARES, Circuit Judges.

                       (Opinion Filed: August 14, 2013)

                               _______________

                                  OPINION
                               _______________

CHAGARES, Circuit Judge.
       Devin Antonio Hockaday pled guilty to charges of conspiracy to distribute cocaine

base in violation of 21 U.S.C. § 846 and of failure to appear for jury selection and trial in

violation of 18 U.S.C. § 3146. The District Court sentenced him to 135 months of

incarceration. Hockaday appealed his sentence, but this Court affirmed the District

Court’s judgment of sentence in a non-precedential opinion. He now appears before this

Court seeking a modification of that sentence pursuant to 18 U.S.C. § 3582(c)(2). For the

reasons discussed below, we will affirm the District Court’s denial of Hockaday’s motion

for a reduction of his sentence.

                                              I.

       We write solely for the benefit of the parties and will therefore only briefly recite

the facts of this case.

       Hockaday admitted in his written plea agreement and during his plea colloquy that

during the second half of 2005, he conspired to distribute between 150 and 500 grams of

cocaine base, also known as crack cocaine. Appendix (“App.”) 56-59, 85-86. After

ruling on Hockaday’s objections to the presentence investigation report, the District

Court determined that his advisory Guidelines range was 135 to 168 months, based on a

total offense level of 33 and a criminal history category of I. On July 27, 2009, the

District Court sentenced Hockaday to 120 months on the drug conspiracy count, which

was the mandatory minimum, and 15 months on the failure to appear count, for a total

sentence of 135 months. Hockaday appealed on several grounds, but this Court affirmed

the District Court’s sentence on August 12, 2010.



                                              2
       In November 2011, Hockaday filed a pro se motion to modify his term of

imprisonment under 18 U.S.C. § 3582(c)(2). The District Court appointed counsel, who

filed a brief in support of Hockaday’s motion. After the District Court denied the motion,

Hockaday timely appealed. 1

                                             II.

       The District Court had jurisdiction to review Hockaday’s motion under 18 U.S.C.

§ 3231. This Court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. We

review the District Court’s legal interpretation of relevant statutes and guidelines de

novo, and we review the District Court’s ultimate ruling on a motion to reduce a sentence

pursuant to § 3582(c)(2) for abuse of discretion. United States v. Mateo, 560 F.3d 152,

154 (3d Cir. 2009).

       The Fair Sentencing Act (“FSA”) was enacted on August 3, 2010. The FSA

reduced the crack-to-powder sentencing ratio from 100-to-1 to 18-to-1 by increasing the

drug amounts triggering mandatory minimum sentences for crack cocaine offenses.

Dorsey v. United States, 132 S. Ct. 2321, 2329 (2012). It also instructed the 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. (quotation marks omitted). A set of emergency

Guidelines amendments changing the offense levels associated with drug offenses took

effect on November 1, 2010, and a permanent set took their place one year later. Id.


1
  After the Notice of Appeal was filed, Hockaday filed a pro se motion for
reconsideration, which the District Court denied.
                                             3
                                            A.

       Hockaday first argues that in light of the Supreme Court’s reasoning in Dorsey

and this Court’s reasoning in United States v. Dixon, 648 F.3d 195 (3d Cir. 2011), he

should benefit from the FSA because his appeal was under direct review at the time the

legislation went into force. Those cases, however, addressed defendants who were

situated differently than Hockaday is here. In Dixon, this Court considered whether a

defendant who committed his offense before the FSA was enacted but sentenced after

enactment benefitted from the FSA’s more forgiving mandatory minimum sentences for

cocaine base possession. After considering both the general saving statute and the will of

Congress as manifested in the FSA, we concluded that “the FSA requires application of

the new mandatory minimum sentencing provisions to all defendants sentenced on or

after August 3, 2010, regardless of when the offense conduct occurred.” Dixon, 648 F.3d

at 203 (emphasis added). In so holding, we specifically noted that this conclusion did not

conflict with our earlier holding in United States v. Reevey, 631 F.3d 110 (3d Cir. 2010),

that the FSA did not apply retroactively to defendants who, like Hockaday, committed

their offenses and were sentenced before that act was enacted. Id. at 198 n.3. 2



2
  Hockaday argues that Reevey is inapposite because the defendants there were
challenging their sentence directly and not asking for relief under § 3582(c)(2). While
this may be true, it is a distinction without meaning in the context of the arguments here.
Both Hockaday and the defendants in Reevey were subject to mandatory minimum
sentences. If all that a defendant needed to do to escape Reevey’s holding that the FSA is
not retroactive was to bring a separate motion under § 3582(c)(2) rather than challenge
his sentence directly, the opinion would mean very little. No part of the Court’s
conclusion in Reevey relies on the fact that the defendants there sought application of the
FSA on a direct challenge to their sentences and Hockaday has offered no compelling
                                             4
       The Supreme Court in Dorsey reached the same conclusion, even though it

acknowledged that “application of the new minimums to pre-Act offenders sentenced

after August 3 will create . . . disparities” between “pre-Act offenders sentenced before

August 3 and those sentenced after that date.” Dorsey, 132 S. Ct. at 2335. These

disparities, the Supreme Court reasoned, “reflect[] a line-drawing effort” and “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).” Id. This

explanation illustrates why extending Dixon and Dorsey’s concern with creating a

consistent and fair cocaine sentencing regime to reach any defendant affected by the old

mandatory minimums would go too far: taken to their logical conclusions, these

concerns would call into question every single sentence ever based on a crack cocaine

mandatory minimum. Not even Hockaday advances this argument.3

       Instead, Hockaday contends that he is more like defendants who committed their

offenses pre-FSA but were sentenced post-FSA than defendants who both committed

their offenses and were sentenced pre-FSA because although the District Court issued his

sentence before the FSA became law, his case was on direct appeal on August 3, 2010,

argument as to why the FSA should be considered a retroactive statute only for the
purposes of a § 3582(c)(2) motion.
3
  The Court is aware of the recent decision by the Court of Appeals for the Sixth Circuit
in United States v. Blewett, 2013 WL 2121945, --- F.3d ---- (6th Cir. May 17, 2013), in
which the Court held that because application of racially discriminatory mandatory
minimum crack sentences to defendants sentenced prior to the enactment of the FSA
would violate the Fourteenth Amendment’s Equal Protection Clause, the “Act should
apply to all defendants, including those sentenced prior to its passage.” Id. at *1.
Because Blewett conflicts with this Court’s precedent, see Reevey, 631 F.3d at 115, and
because the Blewett court relied on arguments not presented here, we decline to follow its
lead.
                                             5
when the FSA was signed into law. Hockaday points to nothing, though, in the text of

the law suggesting that Congress intended to change the applicable law with respect to

mandatory minimums for the narrow class of defendants whose sentences were on direct

appeal at the time that the law was signed into action. Instead, he invokes the common

law rule of abatement, which ends all prosecutions that have not reached “final

disposition in the highest court authorized to review them” when the underlying statute

was repealed. Bradley v. United States, 410 U.S. 605, 607-08 (1973). Even if we were

to apply that rule in this context, it would not help Hockaday because it abates only

prosecutions, which “terminate[] . . . when sentence is imposed,” id. at 609, and

Hockaday’s sentence was imposed before the FSA became law. As the Supreme Court

pointed out in Dorsey, application of the new minimums under the FSA will inevitably

involve a line-drawing process. We are convinced by our precedent, and the precedent of

our sister circuits and of the Supreme Court, that the appropriate line has been drawn

between those defendants who were sentenced pre- and post-FSA.

                                            B.

       Hockaday tries to clear a second path to relief under § 3582(c)(2) by arguing that,

mandatory minimum aside, his sentencing range was lowered from 135 to 168 months to

87-108 months by the Sentencing Commission’s post-FSA amendments to the Guidelines

and he therefore qualifies as a defendant sentenced “based on a sentencing range that has

subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). In

determining eligibility for a sentence modification, the Sentencing Guidelines instruct

that a court should “begin by ‘determin[ing] the amended guideline range that would

                                             6
have been applicable to the defendant’ had the relevant amendment been in effect at the

time of the initial sentencing.” Dillon v. United States, 130 S. Ct. 2683, 2691 (2010)

(quoting U.S.S.G. § 1B1.10(b)(1)) (alteration in original). In light of this Court’s recent

opinion in United States v. Savani, 2013 WL 2462941, --- F.3d ---- (3d Cir. June 10,

2013), Hockaday may be correct that a defendant’s “applicable guideline range” for

purposes of § 3582(c)(2) is calculated before consideration of any mandatory minimums

applicable to the defendant. Id. at *9 (applying the rule of lenity to conclude that the

“applicable guideline range” as defined by commentary to the Sentencing Guidelines

does not include a statutory mandatory minimum sentence).

       The holding in Savani, however, is limited to the class of defendants who,

although they were subject to a mandatory minimum term, were “sentenced to a term

pursuant to the guidelines but below the mandatory minimum as a result of a § 3553

motion by the government.” Id. The sentencing courts in the cases before the Court in

Savani decided to depart below the mandatory minimums and imposed sentences based

on the defendants’ sentencing ranges. 4 Here, while the District Court did note that the

mandatory minimum sentence lined up with the bottom of Hockaday’s sentencing range,

it is clear that Hockaday’s sentence was based on the mandatory minimum to which he

was subject. This key difference not only explains why the holding in Savani is not

applicable to Hockaday, but also goes to the heart of the reason that he is ineligible for

relief: Hockaday was not sentenced based on the Guidelines, which have been amended

4
  We recognize that several of the defendants in Savani actually received sentences below
their advisory Guidelines range. This does not mean, however, that their sentences were
not based on their respective ranges.
                                              7
with retroactive effect; rather, he was sentenced based on a statutory mandatory

minimum, which the FSA did not amend with retroactive effect.

                                           III.

      For the foregoing reasons, we will affirm the District Court’s order.




                                            8
