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                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-13139
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 6:11-cr-00345-CEH-GJK-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

SIMEON A. HUNTLEY, III,

                                                              Defendant-Appellant.

                          ________________________

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

                                  (July 11, 2014)

Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:

      Simeon Huntley, III, appeals the district court’s denial of his 18 U.S.C.

§ 3582(c)(2) motion for a reduction in his sentence based on the Fair Sentencing
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Act of 2010 (“FSA”) and Amendment 750 to the Sentencing Guidelines. In 2006,

Huntley pled guilty to 1 count of possessing more than 50 grams of crack cocaine

and an unspecified quantity of powder cocaine with intent to distribute. He was

sentenced to 120 months’ imprisonment, the statutory minimum sentence in place

at the time of his sentencing. In 2011, he filed the present § 3582(c)(2) motion,

arguing that the FSA and its statutory amendments should apply retroactively to

reduce his sentence. The district court denied his § 3582(c)(2) motion, stating that

he was ineligible for relief because the FSA did not apply retroactively to change

his statutory minimum sentence, so his sentence could not be reduced below 120

months.

      On appeal, Huntley argues that his mandatory-minimum sentence does not

prevent the reduction of his sentence under § 3582(c)(2) pursuant to

Amendment 750, because his “sentencing range” was reduced by the amendment,

even if his guideline sentence of 120 months was not. He further states that his

case is distinguishable from United States v. Hippolyte, 712 F.3d 535 (11th Cir.

2013), which held that the FSA was not retroactive, because the defendant in that

case was sentenced under U.S.S.G. § 5G1.1(b), while he was sentenced under

§ 5G1.1(c).

      We review for an abuse of discretion the district court’s decision whether to

reduce a sentence pursuant to § 3582(c)(2). United States v. White, 305 F.3d 1264,


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1267 (11th Cir. 2002). We review de novo the district court’s legal conclusions

regarding the scope of its authority under § 3582(c)(2). Id. We are bound by the

opinion of a prior panel unless the Supreme Court or this Court sitting en banc

overrules that opinion. United States v. Lawson, 686 F.3d 1317, 1319 (11th Cir.),

cert. denied, 133 S.Ct. 568 (2012).

      A district court may modify a term of imprisonment in the case of a

defendant who was sentenced to a term of imprisonment based on a sentencing

range that has subsequently been lowered by the Sentencing Commission.

18 U.S.C. § 3582(c)(2). A reduction, however, must be “consistent with applicable

policy statements issued by the Sentencing Commission.” Id. The applicable

policy statements, found in U.S.S.G. § 1B1.10, state that “[a] reduction in the

defendant’s term of imprisonment . . . is not authorized under 18 U.S.C.

§ 3582(c)(2) if . . . [the] amendment . . . does not have the effect of lowering the

defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). More

specifically, the commentary provides that a § 3582(c)(2) sentence reduction is not

authorized and not consistent with § 1B1.10(a)(2)(B) where “the amendment does

not have the effect of lowering the defendant’s applicable guideline range because

of the operation of another guideline or statutory provision (e.g., a statutory

mandatory minimum term of imprisonment).” Id. § 1B1.10, comment. (n.1(A)).




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      The FSA, enacted on August 3, 2010, raised the quantity of crack cocaine

necessary to trigger the 10-year mandatory-minimum sentence from 50 grams to

280 grams. See Pub. L. No. 111-220, § 2(a)(1), 124 Stat. 2372 (2010), codified at

21 U.S.C. § 841(b)(1)(A)(iii). The FSA directed the Sentencing Commission to

promulgate emergency amendments to bring the Guidelines into conformity with

its provisions “as soon as practicable.” Pub. L. 111-220, § 8, 124 Stat. at 2374.

Amendment 750 to the Sentencing Guidelines amended the drug quantity table in

U.S.S.G. § 2D1.1(c) to reduce offense levels in crack cocaine cases by two levels.

See U.S.S.G. App. C, Amend. 750 (2011). Amendment 750 was made retroactive

by Amendment 759, effective November 1, 2011. See id., Amend. 759 (2011); see

also U.S.S.G. § 1B1.10(c). On June 21, 2012, the Supreme Court held in Dorsey

that the FSA’s reduced statutory mandatory minimums apply to defendants who

committed crack cocaine offenses before the FSA’s August 3, 2010, effective date,

but were sentenced after that date. Dorsey v. United States, 567 U.S. ___, ___, 132

S.Ct. 2321, 2335-36, 183 L.Ed.2d 250 (2012).

      In Berry, we rejected Berry’s argument that he was eligible for § 3582(c)(2)

relief under the FSA, determining that the FSA was not a guidelines amendment by

the Sentencing Commission, but rather a statutory change by Congress. United

States v. Berry, 701 F.3d 374, 377 (11th Cir. 2012). Thus, it did not serve as a

basis for a § 3582(c)(2) sentence reduction in Berry’s case. Id. Even assuming


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that Berry could bring his FSA claim in a § 3582(c)(2) motion, we continued, his

claim still failed because he was convicted and sentenced in 2002 and the FSA did

not apply retroactively to his 2002 sentences. Id. We agreed with “every other

circuit to address the issue” that there was no evidence that Congress intended the

FSA to apply to defendants who had been sentenced before the August 3, 2010,

date of the FSA’s enactment. Id. Finally, we distinguished the Supreme Court’s

decision in Dorsey, noting that Dorsey did not suggest that the FSA’s new

mandatory minimums should apply to defendants, like Berry, who were originally

sentenced before the FSA’s effective date. Id. at 377-78.

      Most recently, in United States v. Hippolyte, 712 F.3d 535, 542 (11th Cir.),

cert. denied, 134 S.Ct. 181 (2013), we reaffirmed our conclusion in Berry that the

Supreme Court’s decision in Dorsey did not suggest that the FSA should apply to

defendants who were sentenced before the FSA’s effective date. We explained

that, because the FSA did not apply retroactively to Hippolyte’s case, the statutory

minimums that applied in determining whether he was eligible for § 3582(c)(2)

relief were the minimums that were in place at the time when he was sentenced in

1996. Id. Finally, we concluded that “§ 3582(c)(2) does not authorize a sentence

reduction if a guidelines amendment does not have the effect of reducing the

defendant’s sentence.” Id.




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      In this case, the district court properly denied Huntley’s § 3582(c)(2)

motion. The FSA’s statutory changes do not apply retroactively to reduce

Huntley’s mandatory-minimum sentence. The 10-year mandatory-minimum

sentence that was in place at the time of Huntley’s sentencing remains effective,

and, therefore, his sentence cannot be reduced below 120 months. Consequently,

he is ineligible for relief under § 3582(c)(2) based on Amendment 750.


      Upon review of the entire record on appeal, and after consideration of the

parties’ appellate briefs, we affirm.


      AFFIRMED.




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