NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 12-4398

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UNITED STATES OF AMERICA

v.

LORENZO GIL-DELACRUZ,

 Appellant 

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APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF DELAWARE

(D.C. No. 1-10-cr-00039)

District Judge: Honorable Leonard P. Stark

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Submitted Under Third Circuit LAR 34.1(a)

July 8, 2013

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Before: GREENAWAY, JR., SLOVITER, and BARRY, Circuit Judges.

(Opinion Filed: September 3, 2013)

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OPINION

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GREENAWAY, JR., Circuit Judge.

Appellant Lorenzo Gil-Delacruz (“Appellant”) asks us to review the District 

Court’s denial of his 18 U.S.C. § 3582(c) motion. He argues that the District Court 
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should have reached the merits of his motion pursuant to its authority under 

§ 3582(c)(1)(B). For the reasons set forth below, we will affirm.

I. FACTS AND PROCEDURAL HISTORY

Because we write primarily for the benefit of the parties, we recount only the facts 

essential to our discussion. In mid-2010, a federal grand jury indicted Appellant on 

charges of possessing with intent to distribute fifty grams or more of cocaine base. 

Shortly thereafter came the Fair Sentencing Act of 2010 (“FSA”), which took effect in 

August of that year. In February 2011, Appellant pled guilty to a one-count Information 

which charged that he possessed with intent to distribute “5 grams or more of a mixture 

and substance containing a detectable amount of cocaine base” in violation of 21 U.S.C. 

§ 841(a)(1). (App. at 26.) The plea agreement likewise referred to “5 grams or more of a 

mixture and substance containing cocaine base.” (Id. at 32.) 

At the plea hearing, Appellant confirmed that he had possessed “more than five 

grams” of cocaine base. (Sup. App. at 20-21.) The Government then recited the salient 

facts of the case, explaining that Appellant possessed over 100 grams of crack cocaine on 

his person (in a small glassine envelope secreted in his mouth) and in his residence. (See 

id. at 21-23.) Immediately following this recitation, the Court asked whether Appellant 

or his counsel wished to challenge the Government’s facts. (Id. at 23-24.) Appellant’s 

counsel declined to “challenge or amend anything in the Government’s recitation of 

the[se] facts,” (id.), and Appellant himself noted that he had no strong disagreement with 

“any of the Government’s factual representations,” (id. at 24). Finally, Appellant 
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confirmed his understanding that “the count to which [he was] pleading guilty carrie[d] a 

minimum mandatory [sic] sentence of five years incarceration.” 1

In September 2011, a month after this Court found the FSA to be retroactive in 

United States v. Dixon, 648 F.3d 195 (3d Cir. 2011), the District Court held Appellant’s 

sentencing hearing. At that hearing, Appellant did not object to the Presentencing 

Report, which again stated that he possessed with intent to distribute over 100 grams of 

crack cocaine and calculated the applicable Guidelines Range according to the post-FSA 

numbers. (App. at 53-54.) Nor did he disagree that, given the amount of crack cocaine at 

issue, a mandatory minimum sentence of 60 months applied.

 (Id. at 14-15.) 

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 1 The mandatory minimum sentence is set forth in 21 U.S.C. § 841(b)(1)(B):

 (See, e.g., id. at 51 (“THE 

(b) Penalties

Except as otherwise provided . . . any person who violates subsection (a) of this 

statute shall be sentenced as follows:

(1) . . . (B) In the case of a violation of subsection (a) of this section 

involving —

(iii) 28 grams or more of a mixture or substance . . . which contains 

cocaine base;

Such person shall be sentenced to a term of imprisonment which may not be less 

than 5 years . . . .

21 U.S.C. § 841(b)(1)(B)(iii). Prior to the FSA, the same section had required only “5 or 

more grams” of such substance to trigger the mandatory minimum sentence. 21 U.S.C. 

§ 841(b)(1)(B) (2006). At the time of Appellant’s plea hearing, we had not yet resolved 

the question of whether the FSA retroactively applies to individuals, like Appellant, 

whose crimes occurred prior to the FSA’s enactment but were sentenced after. 

2 Indeed, it was Appellant who asked for the 60-month mandatory minimum prescribed 

by the FSA. In a letter filed with the District Court prior to the sentencing hearing, 

Appellant’s counsel argued in favor of retroactively applying the FSA, “respectfully 

contend[ing] that the court apply the new mandatory minimum standard set forth in the 

Fair Sentencing Act of 2010 and sentence [Appellant] only to that minimum period of 

incarceration.” (App. at 42.) At the sentencing hearing, Appellant returned to this point, 
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COURT: . . . It seems there is no dispute that the minimum mandatory is 60 months. 

[APPELLANT’S COUNSEL]: That is exactly right. For pure numbers, that is 

correct.”). Ultimately, the District Court ruled that, given the applicable post-FSA 

Guidelines Range of 63 to 78 months, it would “vary downward from the bottom of the 

advisory range of 63 down to the mandatory minimum of 60 months.” (Id. at 83.)

A half-year later, Appellant filed a pro se motion for modification of sentence, 

captioned: “§ 1B1.10 Reduction in Term of Imprisonment as Result of Amended 

Guidelines Amendment Pursuant to 3582(c)(2).” (Id. at 86.) Appellant’s counsel also 

filed a brief in support of the motion, captioned “Defendant Gil-Delacruz’s Brief in 

Support of Sentence Reduction under Guideline Amendment 750.” (Id. at 102.) In 

essence, Appellant contended that the FSA had reduced his applicable Guidelines Range 

and, separately, that he should not have been subject to the post-FSA mandatory 

minimum sentence given that he pled guilty to possessing with intent to distribute “5 or 

more” grams of crack cocaine rather than the “28 or more” now required to trigger the 

mandatory minimum under the amended version of 21 U.S.C. § 841(b)(1)(B). (See id. at 

102-08.)

 

with counsel arguing that “notwithstanding the application or impact of the plea 

agreement in this case and notwithstanding the actual guidelines which I know are 

retroactive in this case, the actual mandatory minimum, the new mandatory minimum 

[under the FSA] should apply in this case, and I suggest there is ample authority for that.” 

(Id. at 50; see also id. at 51-52 (explaining that Appellant’s counsel sent the letter 

“because [he] thought it was important” since “[t]he Court could hang its hat on either the 

mandatory minimum and the application of the plea agreement or it could hang its hat on 

the notion that the Court finds that the Fair Sentencing Act is in fact retroactive and 

applicable [to] this case”).)
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In November 2012, the District Court denied the motion. The District Court 

explained that Appellant had been sentenced under the post-FSA guidelines and was also 

subject to the 60-month mandatory minimum sentence. Since Appellant “ha[d] already 

received the benefit of the Sentencing Commission’s 2010 and 2011 amendments [as a 

result of the FSA],” the District Court ruled that it did not “have the authority pursuant to 

Section 3582(c) to reduce [Appellant’s] sentence.” (Id. at 4.) The District Court also 

explained that Appellant’s contention that he should not have been subject to the 

mandatory minimum sentence “[did] not provide grounds for relief pursuant to Section 

3582.”3

Appellant does not seem to quarrel with the District Court’s resolution of the 

§ 3582(c)(2) issue regarding his applicable Guidelines Range. Rather, he now argues that 

the District Court had authority to reduce his sentence pursuant to § 3582(c)(1)(B), which 

permits a district court to modify a sentence “to the extent otherwise expressly permitted 

by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” 18 U.S.C. 

§ 3582(c)(1)(B). According to Appellant, the FSA expressly permits retroactive sentence 

modification here.

 (Id. at 5.)

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction over Appellant’s case pursuant to 18 U.S.C. 

§ 3231. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Because 

 3 We note, in passing, that throughout this months-long process, the only §3582(c) 

subsection explicitly mentioned in any of the relevant papers had been § 3582(c)(2).
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this case raises a “purely legal question” for interpreting 18 U.S.C. § 3582(c)(1)(B), our 

review is plenary. See United States v. Ware, 694 F.3d 527, 531 (3d Cir. 2012). 

III. ANALYSIS

We think it unnecessary to definitively resolve Appellant’s argument as we fail to 

see what Appellant would gain even if we agreed with him that the District Court had 

authority pursuant to § 3582(c)(1)(B). Were we to remand Appellant’s motion for further 

consideration, he would still be subject to a 60-month mandatory minimum sentence. 

Although the FSA increased the threshold amount for imposition of the 60-month 

mandatory minimum sentence in 21 U.S.C. § 841(b)(1)(B) from “5 or more” to “28 or 

more” grams of crack cocaine and the Information and plea agreement both stated that

Appellant possessed “5 or more” grams of the substance, at the plea hearing Appellant 

did reiterate that he possessed “more than five” grams of crack cocaine and he validated 

the veracity of the Government’s factual recitation — which described him as being in 

possession of more than 100 grams.

Thus, even if we were to assume away the potential legal impediments to

Appellant’s position and accept that (1) the FSA expressly permits retroactive sentence 

modification pursuant to 18 U.S.C. § 3582(c)(1)(B); (2) a motion pursuant to 18 U.S.C. 

§ 3582(c)(1)(B) could be a proper vehicle for challenging the imposition of a mandatory 

minimum sentence, but see United States v. Carter, 500 F.3d 486 (6th Cir. 2007)

(“[W]hen a motion titled as a § 3582 motion otherwise attacks the petitioner’s underlying 

conviction or sentence, that is an attack on the merits of the case and should be construed 

as a [28 U.S.C.] § 2255 motion.”); and (3) the complete lack of a direct citation to 18 
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U.S.C. § 3582(c)(1)(B) in any of the papers before the District Court does not otherwise 

constrain Appellant’s ability to obtain the relief he seeks, we would return to the same 

point: Appellant admitted that he possessed more than 100 grams of crack cocaine with 

intent to distribute.

In light of this admission, the post-FSA mandatory minimums would still apply. 

See Blakely v. Washington, 542 U.S. 296, 303 (2004) (“[T]he ‘statutory maximum’ for 

[purposes of Apprendi v. New Jersey, 530 U.S. 466 (2000)] is the maximum sentence a 

judge may impose solely on the basis of the facts reflected in the jury verdict or admitted 

by the defendant.”); see also United States v. Burke, 431 F.3d 883, 887 (5th Cir. 2005) 

(explaining that accepting the Government’s recitation of fact during a plea colloquy as 

accurate amounts to an admission).

IV. CONCLUSION

For the reasons discussed above, we affirm the District Court’s denial of 

Appellant’s motion to modify his sentence.