                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1009n.06

                                            No. 11-4423
                                                                                          FILED
                           UNITED STATES COURT OF APPEALS
                                                                                      Sep 13, 2012
                                                                                DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                   ON APPEAL FROM THE
                                       )                   UNITED STATES DISTRICT
v                                      )                   COURT FOR THE NORTHERN
                                       )                   DISTRICT OF OHIO
ANTHONY STANLEY,                       )
                                       )
                                                                   OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: MERRITT, MOORE, and McKEAGUE, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Anthony Stanley pleaded guilty to one count

of distribution of cocaine base (“crack cocaine”) and one count of possession with intent to distribute

crack cocaine. Stanley was sentenced in 2008 to a statutory mandatory-minimum sentence of 240

months of imprisonment. In 2011, he filled a motion to have his sentence reduced under 18 U.S.C.

§ 3582(c) and the Fair Sentencing Act of 2010 (“FSA”).

       The district court concluded that Stanley was ineligible for the reduction. As explained

below, we agree. Stanley’s sentence was based on a statutory mandatory minimum and not the

Sentencing Guidelines; therefore, he is ineligible for a modification of his sentence under § 3582(c).

Furthermore, the FSA does not apply to offenders who were sentenced prior to its enactment; thus,

the FSA does not apply to Stanley. Accordingly, we AFFIRM.
No. 11-4423
United States v. Stanley


                                      I. BACKGROUND

       On November 16, 2006, Stanley pleaded guilty to one count of distribution of crack cocaine

(Count 1) and one count of possession with intent to distribute crack cocaine (Count 2), both in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A).1 Pursuant to a plea agreement, Stanley agreed to

be held responsible for 52.61 grams of crack cocaine in Count 1 and 56.01 grams in Count 2—a total

of 108.62 grams.

       At sentencing on February 1, 2008, Stanley’s Guidelines range for Counts 1 and 2 was

initially determined to be 210 to 262 months. At that time, an offender who possessed or sold more

than fifty grams of crack cocaine and had a prior felony drug conviction was subject to a statutory

mandatory minimum of 240 months. 21 U.S.C. § 841(b)(1)(A) (2006) (amended 2010). Stanley

possessed and sold more than fifty grams of crack cocaine and had a prior felony drug conviction.

Therefore, the lower end of Stanley’s Guidelines range became the statutory minimum, and the

district court imposed a sentence of 240 months of imprisonment for Counts 1 and 2.

       On August 3, 2010, the President signed the FSA into law. The Act raised the triggering

amounts of crack cocaine for mandatory-minimum sentences such that if Stanley were sentenced

today, the mandatory minimum would be 120 months of imprisonment. See Fair Sentencing Act of

2010, Pub. L. No. 111-220, 124 Stat. 2372 (August 3, 2010); 21 U.S.C. § 841(b)(1)(B). Conforming

amendments to the Guidelines became effective initially on November 1, 2010, and “[a] permanent


       1
        Stanley also pleaded guilty to being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). His 120-month concurrent sentence for that charge is not challenged on this
appeal.

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No. 11-4423
United States v. Stanley


version of those Guidelines amendments took effect on November 1, 2011.” Dorsey v. United

States, 132 S. Ct. 2321, 2329 (2012).

       On November 4, 2011, Stanley filed a motion to reduce his sentence pursuant to 18 U.S.C.

§ 3582(c)(2) and the FSA. The district court described the thrust of Stanley’s argument:

               Although Defendant does not spell out his argument, the Court understands
       it to be the following. When Defendant was sentenced in 2008, the statutory
       mandatory minimum for the amount of crack he possessed was 240 months. As a
       result of the Fair Sentencing Act, which Congress passed in 2010, the statutory
       mandatory minimum was reduced to 120 months. The U.S. Sentencing Commission
       Guidelines Amendment, which went into effect on November 1 of this year [2011],
       applies retroactively to sentences for crack possession. Defendant’s statutory
       minimum sentence should therefore be reduced retroactively to 120 months.

Dist. Ct. Record (“R.”) 93 (Order) (Page ID #85).

       The district court denied Stanley’s motion, concluding that the U.S. Sentencing

Commission’s recent amendments apply only to sentences based on the Guidelines ranges and not

those based on statutorily mandated minimums. Stanley timely filed this appeal.

                                          II. ANALYSIS

A. Standard of Review

       “Normally, we review a district court’s decision on whether to reduce a defendant’s sentence

under 18 U.S.C. § 3582 for abuse of discretion.” United States v. Hameed, 614 F.3d 259, 261-62

(6th Cir. 2010). But when, as in Stanley’s case, a district court rules that a defendant is ineligible

for a sentence reduction, we review that question of law de novo. Id.; United States v. Johnson, 569

F.3d 619, 622-23 (6th Cir. 2009).



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United States v. Stanley


B. Eligibility for a Reduction Under 18 U.S.C. § 3582

       Generally, a district court “may not modify a term of imprisonment once it has been

imposed.” 18 U.S.C. § 3582(c). A sentence can be modified, however, “when the sentencing judge

relied on the sentencing guidelines and those guidelines are later made more lenient.” Hameed, 614

F.3d at 262. In these cases, the district court engages in a two-part inquiry to determine eligibility

for a reduction: (1) whether the defendant’s sentence was “based on a sentencing range that has

subsequently been lowered by the Sentencing Commission” and (2) whether a reduction in the

defendant’s sentence would be “consistent with applicable policy statements issued by the

Sentencing Commission.” § 3582(c)(2); see also United States v. McClain, --- F.3d ---, No. 10-

3862, 2012 WL 3538238, at *4 (6th Cir. 2012).

       To determine whether a sentence is based on a Guidelines range promulgated by the

Sentencing Commission or a different sentencing scheme, we engage in a “fact-driven, common-

sense inquiry about whether a sentence is ‘derived exclusively’ from a particular sentencing

scheme.” McClain, 2012 WL 3538238, at *4 (citing Hameed, 614 F.3d at 265). In the case at hand,

there is no dispute that Stanley’s sentence was based on a statutory mandatory minimum and not on

the Guidelines. The district court informed Stanley that 240 months was the “minimum under the

law,” and Stanley acknowledges that the amount of crack cocaine he possessed “triggered a

mandatory sentence.” Dist. Ct. R. 78 (Sentencing Hr’g Tr. at 10) (Page ID #212); Appellant Br. at

4. Therefore, Stanley’s sentence could not have been based on a sentencing range that the




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No. 11-4423
United States v. Stanley


Sentencing Commission subsequently lowered because his sentence was based on a statutory

mandatory minimum, namely 21 U.S.C. § 841(b)(1)(A) (2006) (amended 2010).

       Because Stanley failed to meet part one of the 18 U.S.C. § 3582(c) eligibility inquiry, we will

not address part two—whether a reduction would be consistent with the Sentencing Commission’s

policy statement.

C. Whether the FSA Applies Retroactively to Stanley

       As explained by the district court, Stanley argues that the FSA should apply retroactively to

reduce his sentence to 120 months. The FSA does not, however, apply retroactively to defendants

who were sentenced prior to August 3, 2010. Stanley was sentenced on February 1, 2008; therefore,

the FSA does not apply.

       In the case of new statutory penalties, the general savings statute, 1 U.S.C. § 109, requires

that we apply the penalties in place at the time the offender “commits the underlying conduct that

makes the offender liable,” unless the new penalties expressly or impliedly provide for their

retroactive application. Dorsey v. United States, 132 S. Ct. 2321, 2331-32 (2012). Although the

FSA does not contain an express retroactivity statement, the Supreme Court recently determined that

Congress intended some retroactive application of the FSA. Id. at 2335. Dorsey held that the FSA’s

more lenient mandatory-minimum provisions apply to offenders who committed a crack cocaine

crime before August 3, 2010, but who are sentenced after that date. Id. The decision did not,

however, extend the benefits of the FSA to offenders who were sentenced prior to August 3, 2010.

In fact, the Court explained that the normal practice of the federal sentencing is “to apply new


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United States v. Stanley


penalties to defendants not yet sentenced, while withholding that change from defendants already

sentenced.” Id.

       Stanley has not identified anything that would lead us to conclude that Congress intended the

FSA to apply to defendants sentenced prior to its enactment.2 Therefore, under the general savings

statute, the FSA does not apply to Stanley because he was sentenced more than two years before its

enactment. The district court correctly decided that Stanley was not eligible for a sentence reduction.

We AFFIRM.




       2
         Stanley cites United States v. Shull, 793 F. Supp. 2d 1048 (S.D. Ohio 2011), as support for
applying the FSA retroactively to him. His reliance is misguided. Shull did not address whether the
FSA applies retroactively to all sentenced offenders; rather, the district court addressed the same
issue as in Dorsey—whether the FSA “applies to defendants who committed an offense before the
FSA was enacted, but who are sentenced after.” Id. at 1057.

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