NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0374n.06 No. 12-5770 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. MARI O COL L I

NS, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF KENTUCKY

BEF ORE: GI BB ONS and WHI TE, Circuit J udg es; COHN, District Judge. 1

PER CURI AM. Mario Colli ns appea ls the district court’s order d en y i n g him a sentenc e reduc tion pursuant to 18 U.S.C. § 3582(c)(2) . As set forth be low, we a ffirm. I n 2007, Colli ns pleade d g uilty to possession with intent to distribute five g rams or more of

coca ine base in violation of 21 U.S.C. § 841(a) (1) and (b)( 1)(B )(iii). I n the plea ag ree ment enter ed into pursuant to Fe dera l Rule of Criminal Procedur e 11(c) (1)( C), the parties ag ree d that “a sentenc e of 120 months or 10 y ear s, which is the mandatory minimum term of imprisonment require d by law, is the appropr iate dispositi on of t h i s ca s e. ” Colli ns’s prese ntence repor t calc ulated an advisory g uidelines rang e of 2 62 to 327 months of imprisonment based on his status as a car eer offe nder under US SG § 4B1.1. At sentenc ing, the district court acc epted the parties’ plea ag ree ment and imposed the ag ree d-upon sentenc e of 120 months of imprisonment.

The Honora

ble Aver n Cohn, Senior United States District J udg e for the Easter n District of 2 Michig an, sitting by

desig nation.No. 12-5770

United States v. Collins I n 2007, the U.S. Sentencing Commi ssion amende d the Guidelines, reduc ing by two levels the base offe nse levels for most cra ck coca ine offe nses. I n 2008, it made the amendment retroa ctive. Following the amendments, the district court considere d, pursuant to § 3582(c) (2), whether Colli ns

was e ligible f

or a sentenc e reduction. The dist rict court denied a sentenc e reduction beca use: (1) the amendments did not lower Colli ns’s g uidelines rang e due to his status a s a car eer offe nder; (2) it was bound by the parties’ ag ree d-upon sentenc e; and (3) the 120-month sentenc e was rea sonable and sufficie nt to satisfy the sentenc ing purposes set forth in 18 U.S.C. § 3553(a)

. This court aff irmed the district court’s or der. United States v. Collins , No. 09-5359 (6th Cir. Jul y 14, 2010). I n 2010, Congr ess passed the Fa ir Sentencing Act (“F SA”), which incre ased the amount of

cra ck coca ine nece ssary to trig g er mandatory minimum sentenc es under § 841(b) and instructed the Commi ssion to amend the Guidelines acc ordin gl y . After the additional amendments, the district court ag ain considere d Colli ns’s elig ibilit y for a sentenc e reduc tion. Deny ing a sentenc e reduc tion under § 3582(c) (2), the district court concluded that : (1) the amendments did not lower Coll ins’s g uidelines rang e beca

use of his status as a car eer offe nder; (2) it was bound by this court’s prec edent holding that the FSA’s lower mandatory minimum s do not apply retroa ctively , see United States v. Carradine , 621 F.3d 5 7 5 , 5 80 (6th Cir. 2010); and (3) his below-guidelines sentenc e rema ined sufficie nt but not gre ater

than nec essar

y . This appea l followed. Colli ns con t ends that the Supreme Court’s rationale underlying Dorsey v. United States , 132 S. Ct. 2321 (2012), supports the retroa ctive application of the FSA’s require ments reg ard ing the drug quantity trig g ering mandatory minimum sentenc es in sentenc e

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United States v. Collins reduc tion proce eding s under § 3582(c) (2) and that holding otherwise would produce sentenc es more disproportionate than if Cong ress ha d not enac ted the F SA. We ordinarily

revie w the district cour

t’s denial of a

sentenc e reduction under § 3582(c)( 2) for abuse of discretion. United States v. Mc Clain , 691 F.3d 774, 776 ( 6th Cir. 2012). “Where , as here , the district court does not simply decline to use its authority under § 3582(c) (2) but instead rules that it has no authority to reduc e the defe ndant’s sentenc e under the statute, the district court’s conclusion that the defe ndant is ineligib l e fo r a sentenc e reduc tion is a question of law that is revie wed de novo.” United States v. J ohnson , 569 F.3d 619, 623 ( 6th Cir. 2009). “A district court may modify a defe ndant’s senten ce only as provided by statute.” United States v. Johnson , 564 F.3d 419, 421 (6th Cir. 2009). Pursuant to § 3582(c) (2), the district court may reduc e a defe ndant’s sentenc e if: (1) the defe ndant’s sentenc e was “base d on a sentenc ing rang e that has s ub sequently been lowere d by the Sentencing Commi ssion” and (2) “such a reduc tion is consistent with applicable policy statements issued by the Sentencing Commi ssion.” 18 U.S.C

. § 3582(c) (2); see M

cClain , 691 F.3d at 777. Colli ns’s sentenc e was not based on a g uidelines rang e but on the parties’ Rule 11(c) (1)( C) plea ag ree ment. In Freem an v. United States , 131 S. Ct. 2685 (2011), the Supreme Court addre ssed whether a defe ndant who enter s into a Rule 11(c) (1)( C) plea ag ree ment for a particula r sentenc e is elig ible for relief under § 3582(c) (2). Acc ording to J ustice Sotomay or’s n ar rowe r and there fore controlling opinion, “whe n a (C) ag ree ment expre ssly uses a Guidelines sentenc in g r a n g e to establish the term of imprisonment, and that rang e is subsequently lowere d by the Commi ssion, the defe ndant is elig ible for sentenc e reduc tion under § 3582(c) (2).” Freem an , 131 S. Ct. at 2698 (Sotomay or, J ., -3-No. 12-5770

United States v. Collins

concur ring in the judgme nt) (empha sis a dded). Colli ns’s Rule 11(c) (1)( C) plea ag ree ment did not

use a g uidelines rang e to establish the term of imprisonment; instead, the plea ag ree ment expressly used the statutory mandatory minimum

. There fore , Colli ns is ineligible for sentenc e reduc tion. See United States v. McPhe rso n , 6 2 9 F.3d 609, 611 (6th Cir. 2011) (holding that defe ndant was ineligible for a sentenc e re d u ct i o n b ecause his sentenc e was based on a statutory mandatory minimum , not a Guidelines ra ng e). Rely ing on Dorsey , Colli ns asser ts that the drug quantities trig g ering the FSA’s statutory penalties should app l y re t ro actively in § 3582(c) (2) proce eding s. But § 3582(c) (2), by its own 2 terms, applies only to g uidelines amendmen t s and not to statutory penalty chang es. The Dorsey decision said nothing about the FSA’s eff ect on § 3582(c) (2) proce eding s, holding that the FSA applies to offe nders sentenc ed afte r its eff ective date. 132 S. Ct. at 2335. In rea ching that holding, the Supreme Court rec og nized that application o f t h e FSA to offe nders sentenc ed afte r Aug ust 3, 2010, would “cr eate a new set of disparities. But those disparities, ref lecting a line-dra

wing eff ort, will e x ist whe never Congr ess enac ts a new law chang ing sentenc es . . . .” Id

. The Supreme Court explained: “[I ]n fede ral sentenc ing the ordinary prac tice is to apply new penalties to defe ndants not y et sentenc ed, while withholding that chang e from defe ndants alre ady sentenc ed.” Id

. Contrary to Colli ns’s argument, it does not follow from Dorsey that the FSA applies retroa ctively to § 3582(c) (2) proce eding s. Rat h er , t h e Dor sey decision l eads to the conclusion that offe nders sentence d befor e the FSA’s enac tment do not benef it from the FSA’s lower mandatory minimum s—in § 3582(c) (2)

The 22 g rams of cra ck coca ine in Co l l i n s’s case would not have trig g ere d a mandatory 2 minimum under the amende d law. -4-No. 12-5770

United States v. Collins proce eding s or otherwise. See United States v. Ha mm o n d , ___ F.3d ___, No. 12-5522, 2013 WL 1363908 at *2 (6th Cir. Apr. 5, 2013) (holding that a defe ndant who was sentenc ed prior to the eff ective da te of the F SA was inelig ible for a sentenc e re duction pursuant to § 3582(c )(2) ). For the fore g oing rea sons, we aff irm the district court’s order denying a sentenc e reduc tion.

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