2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

11-29-2011 

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w . v i l l a no v a . e du/thir dc ir c uit_2011/153NOT PRECEDENTIAL UNITED STATE COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 10

- 2303

_____________ UNITED STATES OF AMERICA

v. ROMAN SURRATT, Appellant

_____________ _____________ On Appeal from the Unite d States District Court for the Western District of Pennsylvania ( D.C. Criminal No. 2:08

- cr - 00376

- 026 ) District Judge: Honorable Donetta W. Am b rose

__________________________ Submitted Under Third Circuit LAR 34.1(a) October 2 8 , 2011 Before: FISHER, VANA SKIE and ROTH , Circuit Judges (Filed: November 29, 2011 )

_____________ OPINION

_____________ VANASKIE, Circuit Judge. On October 28, 2008, a grand jury in the Western District of Pennsylvania indicted Roman Surratt for violating 21 U.S.C. § 846 for conspiring and p ossess ing with intent to distribute five kilograms or more of a mixture containing a detectable amount of cocaine and fifty or more grams of a mixture and substance containing a detectable2 amount of cocaine base , also known as crack cocaine or crack

. The grand jury also indicted Surratt for violating 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) for poss essing with intent to distribute a mixture and substance containing a detectable amount of heroi n. On June 18, 2009, Surratt ple a d ed guilty to the cocaine base and heroin offenses, accepting responsibility for possessing 149 grams of crack and 22.9 grams of heroin. During his plea hearing , the District Court advised Surratt that his c rack c ocai ne offense was subject to a 120

- month mandatory minimum sentence. The D i strict C ourt then ordered a Presentenc e Investigative Report (PSR). The PSR used the 2008 edition of the United States Sentencing Guidelines Manual, effective November 1, 2008. Surratt’s initial advisory g uideline calculation was 108 to 135 months based upon a total offense level of 31 and a criminal history category of I. Surratt did not object to this calculation

. Because the applicable statut e of conviction, 21 U.S.C. §841(b)(1)(A)(iii) , require d a ten

year (120

- month) mandatory minimum sentence, the advisory g uideline range bec ame 120 to 135 months pursuant to U .S.S.G. § 5G1.1(c)(2)

. On September 11, 2009, the District Court sentenced Surratt to 120 months ’ imprisonment , the statutory mandatory minimum and bottom of the guideline range. On April 2, 2010, Surratt filed a pro se motion to reduce his sentence under 18 U.S.C. § 3582 (c) , arguing that the District Court incorrectly calculated his guideline range by using a n 80

- to

- 1 crack

- to

- powder cocaine quantity ratio to determine his base offense level. The District Court denied Surratt ’ s motion, holding that his s entence was correctly imposed pursuant to the statutory minimum term of imprisonment required by 21 U.S.C. § 841

. Surratt then filed this appeal pro se , arguing that the District Court3 should hav e exercised its discretion and used a reduced drug quantity ratio to impose a lighter sentence

. I

. We have jurisdiction to decide th is appeal pursuant to 18 U.S.C. § 3742 and 28
U.S.C. § 1291

. We reject Surratt’s sentencing challenge and will affirm the judgment of the District Court

. The District Court was obligated to impose a sentence of at least 120 months b ased on Surratt ’ s offense , which was subject to a 120

- month mandatory minimum under 21 U.S.C. § 841(b)(1)(A)(iii)

. A district c ourt may gra nt a motion to reduce a defendant ’ s sentence und er 18 U.S.C. § 3582 (c) only when “ a defendan t . . . has been 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 defendant is not eligible for a reduction under § 3582 (c)(2) if another statute or provision, such as a statutory mandatory minimum, controls the defendant ’ s sentence. See United States v.
Doe , 564 F.3d 305, 312 (3d Cir. 2009)

. The District Court did not have discretion to impose a lower sentence because ,

“ u nlike the advisory sentencing guidelines range, ‘the statutory minimum drug trafficking penalty in 21 U.S.C. § 841(b) . . . is mandatory

. ’” United States v. Reevey , 631 F.3d 110, 113 (3d Cir. 2010) (quoting United States v. Gunter , 462 F.3d 237, 248 (3d Cir. 2006))

. Moreover, a ny potential change to Surratt’s advisory guideline range resulting from the Fair Sentencing Act of 2010 (“FSA”) does not alter our decision because the Act’s4 chang es to mandatory minimum crack penalties do not apply retroactively. 1

I I. See Reevey , 631 F.3d at 114

- 15

. Therefore, the statutorily required minimum term of imprisonment remains 120 months. Because the offense carried a 120

- month mandatory minimum
sentence and his guideline range did not change , Surratt is not entitled to a sentencing
reduction under § 3582 (c)

.

For the foregoing reasons, we will affirm the judgment of the District Court.

1 On June 30, 2011, the Sentencing Commission unanimously voted t o apply the new G uidelines retroactively to def endants sentenced before the FSA’s passage. That decision, however, does not affect the statutory mandatory minimums and has no bearing on the resolution of the issue before us. See United States v. Dixon , 6 48 F.3d 195, 198 n.1 (3d Cir. 2011). In United States v. Reevey , we held that the Savings Statute found at 1 U.S.C. § 109 precluded a defendant from receiving the benefit of the FSA’s statutory changes if both the offense and initial sentencing occurred b efore the FSA’s enactment

. Reevey , 631 F.3d at 114

- 15. Surratt is precluded from the benefit of the FSA’s statutory changes for precisely the same reason. Surratt’s appeal is not governed by Dixon , where we applied the FSA’s statutory changes to the def endant who committed the offense before the enactment of the FSA, but was sentenced after the FSA’s enactment. Dixon , 648 F.3d at 203.