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w . v i l l a no v a . e du/thir dc ir c uit_2013/376NOT 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

De vin Antonio Hockaday, Appellant

_____________ On Appeal from the UnitedStates 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, andCHAGARES, Circuit Judges

. (Opinion Filed: August 14, 2013)

_______________ OPINION

_______________ CHAGARES, Circuit Judge

.2 Devin Antonio Hockaday pled guilty to charges of cons piracy 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 Dis trict 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-pr ecedential opinion. He now appears before this Court seeking a modification of that sentence pursu ant to 18 U.S.C. § 3582(c)(2). For the reasons discussed below, we w ill 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 a nd 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 prese ntence investigation report, the District Court determined that his adv isory Guidelines range was 13 5 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 Hockadayto 120 months on the dr ug conspiracy count, which was the mandatory minimum, and 15 months on the failure to appear count, for a total sentence of 135 months. Hock aday appealed on several grounds, but this Court affirmed the District Court’s senten ce on August 12, 2010.3 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 Ho ckaday’s motion. After the D istrict Court denied the motion, Hockaday tim ely appealed. 1
II. The District Court had jurisdiction to review Hockada y’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 relev ant statutes and guidelines de novo, and we review the D istrict 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 minimu m sentences for crack cocaine offenses. Dorsey v. United States , 132 S. Ct. 2321, 2329 (2012). It also instructedthe Sentencing Commission to “make such con forming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency w ith other guideline provisions and applicable law.” Id. (quotation marks omitted). A set of emergency Guidelines amendments changing the offen se levels associated with drug offenses took effect on November 1, 2010, and a perm anent 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 th e District Court denied.4 A. Hockaday first argues that in light of the Supreme C ourt’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 dir ect review at the time the legislation went into force. Those cases, however, addressed defendants who were situated differently than Hock aday is here. In Dixon , this Court considered whether a defendant who committed his offense before the FSA w as enacted but sentenced after enactment benefitted from the FSA’s more forgiving mandatory minimum sentences for cocaine base possession. After considering bo th 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 th e 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, lik e Hockaday , committed their offenses andwere sentenced before that act was enacted. Id. at 198 n.3. 2

2 Hockaday ar gues that Reevey is inapposite because the de fendants there were challenging their sentence directly and not asking for relief under § 3582(c)(2). While this may be true, it is a distin ction 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) r ather than challenge his sentence directly, th e opinion would mean very l ittle. No part of the Court’s conclusion in Reeveyrelies on the fact that the defendants there sought application of the FSA on a direct challenge to their sentences and Hockaday has o ffered no compelling5 The Supreme Court in Dorsey reached the same conc lusion, even though it acknowledged that “application of the new mi nimums 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, “r eflect[] a line-drawing effort” and “will exist whenever Congress enacts a ne w law changing sentences ( unless Congress intends reopening sentencing proceedings concluded prior to a new law ’s effective date).” Id. This explanation illustrates why extending Dixonand 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 log ical conclusions, these concerns would call into question every si ngle sentence ever basedon a crack cocaine mandatory minimum. Not even Hockaday advances this argument. 3 Instead, Hockaday contends that he is more like defend ants who committed their offenses pre-FSA but were sentenced post-FSA than defe ndants who both committed their offenses and were senten ced pre-FSA because although the District Court issued his sentence before the FSA becam e law, his case was on direct appeal on August 3, 2010, argument as to why the FSA should be consid ered 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 defe ndants sentenced prior to the enactment of the FSA would violate the Fourteenth Amendment’s Equal Protection Clause, the “Act should apply to all defendants, in cluding those sentenced prio r to its passage.” Id. at *1. Because Blewettconflicts with this Court’s precedent, see Reevey , 631 F.3d at 115, and because the Blewettcourt relied on arguments not presen ted here, we d ecline to follow its lead.6 when the FSA was sign ed into law. Hock aday 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 wh ose sentences were on direct appeal at the time that the law was signed in to action. Instead, he invokes the common law rule of abatement, which ends all pr osecutions that have no t reached “final disposition in the highest court authorized to review them ” when the underlying statute was repealed. Brad ley v. United States , 410 U.S. 605, 607-08 (1973). Even if we were to apply that rule in this context, it woul d not help Hockaday because it abates only prosecutions, which “terminate[] . . . when sen tence is imposed,” id. at 609, and Hockaday’s sentence w as 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 conv inced 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 re lief under § 3582(c)(2) by arguing that, mandatory minimum asid e, his sentencing range was lowered from 135 to 168 months to 87-108 months by the Sen tencing Commission’s post-FSA am endments to the Guidelines and he therefore qualifies as a defendant sentenced “based ona sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). In determining eligibility for a sentence modificati on, the Sentencing Guidelines instruct that a court should “begin by ‘determin[i ng] the amended guid eline range that would7 have been applicable to the de fendant’ had the relevant ame ndment 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 UnitedStates v. Savani , 2013 WL 2462941, --- F. 3d ---- (3d Cir. June 10, 2013), Hockaday may be correct that a de fendant’s “applicable guideline range” for purposes of § 3582(c)(2) is calcul ated before consideration of any mandatory minimums applicable to the defendant. Id. at *9 (applying the rule of lenity to c onclude that the “applicable guideline range” as defined by commentary to the Sentencing Guidelines does not include a statutory ma ndatory 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 guidelin es but below the mand atory 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 belo w the mandatory minimums and imposed sentences based on the defendants’ sentencing ranges. 4

4 We recognize that several of the defendants in Savani actually receivedsentences below their advisory Guidelines range. This does not mean, however, that their sentences were not based on their respective ranges. Here, while the District Court did note that the mandatory minimum sen tence lined up with th e bottom of Hockaday ’s sentencing range, it is clear that Hockaday’s sentence was based on the manda tory minimum to which he was subject. This key difference not only explains why the holding in Savani is not applicable to Hockad ay, but also goes to the heart of the reason that he is ineligible for relief: Hockaday was not sen tenced based on the Guidelines, which ha ve been amended8 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 a ffirm the District Court’s order.