NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a1009n.06 No. 11-4423 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, P laintif f-App ellee,

v ANTHO NY STANL EY, Defendan t-Appellant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE N ORTHERN DI STRI CT OF OH I O
O P I N I O N

Before: M ERRITT, MOORE, an d McK EAGU E, Circuit Judges. KA REN NELSO N MOORE, Circuit Judge. Anthony Stanley pleade d g uilty to one count of distribution of coca ine base (“c rac k coca ine”) and one count of possession with intent to distribute

cra ck coc aine. Stanley

was sentenc ed in 2008 to a statutory mandatory -minimum sentenc e of 240 months of imprisonment. I n 2011, he filled a motion to have his sentenc e reduc ed under 18 U.S.C. § 3582(c) and the F air Sentenc ing A ct of 2010 (“ FSA”)

. The district court conclude d th at Stanley was ineligible for the reduc tion. As explained below, we ag ree . Stanley ’s sentenc e was based on a statutor y mandatory minimum and not the Sentencing Guidelines; there fore , he is ineligible for a modification of his sentenc e under § 3582(c)

. Fur thermore , the FSA does not apply to offe nders who wer e sentenc ed prior to its enac tment; thus, the FSA doe s not apply

to Stanley . Acc ording ly , we AF F IRM.No. 11-4423

United States v. Stanley

I. BACKG ROUND On November 16, 2006, Stanley pleade d g uilty to one count of distribution of cra ck coca ine (Count 1) and o n e co u n t o f possession with intent to distribute cra ck coca ine (Count 2), both in violation of 21 U.S.C. §§ 841(a) (1) and (b)( 1)(A)

. Pursuant to a plea ag ree ment, Stanley ag ree d to 1 be held responsible for 52.61 g rams of cra ck coca ine in Count 1 and 56.01 g rams in Count 2—a total of 108.62 g rams. At sentenc ing on Fe bruar y 1, 2008, Stanley ’s Guidelines ra n ge for Counts 1 and 2 was initially deter

mined to be 210 to 262 months. At that time, an offe nder who possessed or sold more than fifty g rams of c rac k coca ine and ha d a prior f elony drugconviction was subjec t to a statutory mandatory minimum of 240 months. 21 U.S.C. § 841(b)( 1)(A) (2006) (ame nded 2010). Stanley possessed and sold more than fifty g rams of cra ck coca ine and had a prior felony drug conviction. There fore , the lower end of Stanley ’s Guidelines rang e beca me the statutory minimum , and the district court imposed a se ntence of 240 months of imprisonment for Counts 1 and 2. On Aug ust 3, 2010, the President signe d the FSA into law. The Act ra i s ed the trig g ering
amounts of cra ck coca ine for mandatory -minimum sentenc es such that if Stanley wer e sent ence d today , the mandatory minimum would be 120 months of imprisonment. See Fa ir Sentencing Act of 2010, Pub. L

. No. 111-220, 124 Stat. 2372 (Aug ust 3, 2010); 21 U.S.C. § 841(b)( 1)(B ). Conforming amendments to the Guidelines beca me eff ective initially on November 1, 2010, and “[a] perma nent Stanley also pleade d g uil ty to being a felon in possession of a firea rm in violation of 18 1 U. S

. C

. § 922(g )(1)

. His 120-month concur rent sentenc e for that char g e is not challeng ed on this appea l. 2No. 11-4423

United States v. Stanley

version of those Guidelines amendments took eff ect on November 1, 2011.” Dorsey v. United States , 132 S. Ct . 2321, 2329 (2012). On November 4, 2011, Stanley filed a motion to reduc e his se ntence pursuant to 18 U.S.C. § 3582(c) (2) a

nd the FSA. The district court desc ribed the thrust of Stanley ’s ar g ument: Although Def

endant does not spell out his arg ument, the Court unde rstands it to be the following

. When Def endant was sentenc ed in 2008, the stat u t o ry mandatory minimum for the amount of cr ac k he possessed was 240 months. As a result of the Fa ir Sentencing Ac t, which Congr ess passed in 2010, the statutory mandatory minimum was reduc ed to 120 months. The U.S. Sentencing Commi ssion Guidelines Amendment, which went into eff ect on November 1 of this y ear [2011] , applies retroa ctively to sentenc es for cra ck possession. Def endant’ s s t atutory minimum sentenc e should there fore be re duced r etroa ctively to 120 months. Dist. Ct. R ecor d (“R.”) 93 (Orde r) ( Pag e I D #85). The district court denied Stanley ’s motio n , concluding that the U.S. Sentencing Commi ssion’s r ece nt amendments apply only to sentenc es based on the Guidelines rang es and not those based on sta tutorily mandated minimums. St anley timely filed this appea l. II. ANALYSIS A. Standard of

Review “Nor mally , we revie w a district court’s decision on whether to reduc e a defe ndant’s sentenc e under 18 U.S.C. § 3582 for abuse of discretion.” United St ates v. Hameed , 614 F.3d 259, 261- 62 (6th Cir. 2010). But when, as in Stanley ’s case, a district court rules that a defenda nt is ineligible for a sentenc e reduc tion, we revie w that question of law de novo. Id. ; United States v. Johnson , 569 F.3d 619, 622- 23 (6th Cir. 2009).

3No. 11-4423

United States v. Stanley

B. Eli gibil ity for a Reduction Und er 18 U .S.C. § 3582 Ge n er ally , a district court “may not modify a term of imprisonment once it h as b ee n imposed.” 18 U.S.C. § 3582(c)

. A sentenc e can be modified, howeve r, “whe n the sentenc ing judge relied on the sentenc ing g uidelines and those g uidelines are later made more lenient.” Hamee d , 614 F.3d a t 262. I n these c ases, the district c ourt eng ag es in a two-par t inquiry to determine e ligibility for a reduc tion: (1) whether the defe ndant’s sent en ce was “base d on a sentenc ing rang e that has subsequently bee n lowere d by the Sentencing Commi ssion” and (2) whether a reduc tion in the defe ndant’s sentence wo u ld be “consistent with applicable policy statements issued by the Sentencing Commi ssion.” § 3 5 8 2 (c )( 2 ); see also United States v. McClain , --- F.3d

--- , No. 10- 3862, 2012 WL 3538238, at *4 (6th Cir. 2012). To deter mine whether a sentenc e is based on a Guidelines ran ge p ro m ulga ted by the Sentencing Commi ssion o r a d i ff ere nt sentenc ing scheme, we enga g e in a “fac t-driven, commonsense inquiry about whether a sentenc e is ‘der ived exclusively ’ from a par t i cu l ar sentenc ing scheme .” McClain , 2012 WL 3538238, at *4 (citing Hamee d , 614 F.3d at 265). I n the case at hand, there is no dispute that Stanley ’s sentenc e was based on a statutory mandatory minimum and not on the Guidelines. The district court informe d Stanley that 240 months wa s the “minimum under the law,” an d Stanley acknow ledg es that the amount of cra ck coca ine he possessed “trig g ere d a mandatory sentenc e.” Dist. Ct. R. 78 (Sentenc ing Hr’g Tr. at 10) (Pag e I D #212); Appellant Br

. at 4. There fore , Stanley ’s sentenc e could not have been base d o n a sentenc ing rang e that the

4No. 11-4423

United States v. Stanley Sentencing Commi ssion subsequently lowere d beca use his sentenc e was based on a statutory mandatory

minimum , namely

21 U.S.C. § 841(b)(1)( A) (2006) (ame nded 2010). Be cause Stanley failed to meet part one of the 18 U.S.C. § 3582(c) elig ibilit y inquiry , we will
not addre ss part two—whether a reduc tion would be consistent with the Sentencing Commi ssion’s policy statement. C. Whether the F SA Appl ies Ret roact ively to Stanley As explained by the district court, Stanley arg ues that the FSA should apply retroa ctively to reduc e his se ntence to 120 months. The FSA does not, howeve r, apply retroa ctively to defe ndants who wer e sentenc ed prior to Aug ust 3, 2010. Stanley was sentenc ed on Fe bruar y 1, 2008; there fore , the FSA doe s not apply

. I n the case of new statutory penalties, the g ener al saving s statute, 1 U.S.C. § 109, require s that we apply the penalties in place at the time the offender “commits the underly ing conduct that makes the offe nder liable,” unless the new penalties expressly or impliedly provide for their
retroa ctive application. Dorsey v. United States , 132 S. Ct. 23 2 1 , 2 3 3 1-32 (2012). Although the FSA does not contain an express retroa ctivity statement, the Supreme Court rec ently deter mined that Congr ess intended some retroa ctive application of the FSA. Id. at 2335. Dorsey held that the FSA’s

more lenient mandatory -minimum provi s i ons apply to offe nders who committed a cra ck coca ine crime befor e Aug ust 3, 2010, but who are sentenc ed afte r that d at e. Id

. The decision did not, howeve r, extend the benef its of the FSA to offe nders who wer e sentenc ed prior to Aug ust 3, 2010. I n fact, the Court explained that the normal prac tice of the fede ral sentenc ing is “to app l y n ew

5No. 11-4423

United States v. Stanley penalties to defe ndant s n o t y et s entenc ed, while withholding that chang e from defe ndants alre ady
sentenc ed.” Id

. Stanley has not identified any thing that would lead us to conclude that Congr ess intended the FSA to apply to defe ndants sentenc ed prior to its enac tment. There fore , under the g ener al saving s 2 statute, the FSA does not apply to Stanley beca use he was sentenc ed more than two y ear s befor e its

enac tment. The district court corr ectly decide d that Stanley was not elig ible for a sentenc e r e d u c ti o n. We AF F IRM.

Stanley cites United States v. Shull , 793 F. Supp. 2d 1048 (S.D. Ohio 2011), as support for 2 apply ing the FSA retroa ctively to him. His relianc e is misguided. Shull did not addre ss whether the FSA applies retroa ctively to all sentenc ed offe nders; rathe r, the district court addr es s ed t h e same issue as in Dorsey

—whether the FSA “applies to de fenda nts w ho committed an offe nse befor e the FSA wa s enac ted, but who ar e sente nced a fter.” Id. at 1057. 6