In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1391

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAXTRELL ROBINSON,

Defendant-Appellant.

Appeal from the United States District Court 

for the Central District of Illinois.

No. 04-CR-20063—Michael P. McCuskey, Judge.

SUBMITTED AUGUST 20, 2012—DECIDED SEPTEMBER 7, 2012

Before CUDAHY, KANNE, and SYKES, Circuit Judges.

PER CURIAM. Daxtrell Robinson moved the district

court to reduce his sentence based on retroactive amendments to the Sentencing Guidelines and the Fair Sentencing Act. See 18 U.S.C. § 3582(c)(2). The district court

denied the motion. Because Robinson was sentenced to

the statutory minimum and the Fair Sentencing Act

does not apply to him, we affirm.

Robinson pleaded guilty in 2005 to possessing 50 grams

or more of crack cocaine. See 21 U.S.C. § 841(a)(1). The
2 No. 12-1391

government filed a recidivism enhancement, which

raised the minimum prison term for this offense to

20 years. See id. §§ 841(b)(1)(A)(iii), 851 (2004). The

district court imposed the minimum sentence of 20 years.

Three years later Robinson moved under § 3582(c)(2)

to reduce his sentence based on amendments 706 and

713 to the guidelines, which retroactively reduced his

base offense level from 32 to 28. U.S.S.G. App. C, Vol. III

226-231, 253 (2011). The district court denied the

motion because Robinson’s sentence was based on

the statutory minimum, which remained unchanged.

After three more years, Robinson filed a second

§ 3582(c)(2) motion in 2011, this time asking the

district court to apply to him the Fair Sentencing Act

of 2010, Pub. L. No. 111-220, § 2(a)(2), 124 Stat. 2372. If

the Act applied to Robinson, he would have faced a

mandatory minimum penalty of 10 years rather than

20 years. Compare 21 U.S.C. § 841(b)(1)(B)(iii) (2006 &

Supp. IV 2010), with id. § 841(b)(1)(A)(iii) (2004). The

district court denied the motion because, it reasoned,

the Fair Sentencing Act did not apply to Robinson,

whose crime and sentencing both took place long before

the Act.

In 2012 Robinson again moved to reduce his sentence, this time based on the combined effects of amendments 748 and 750 to the guidelines and the Fair Sentencing Act. See U.S.S.G. Supp. to App. C, Vol. III 374-84,

391-98 (2011). The amendments, effective November 1,

2011, retroactively reduced from 28 to 26 the base

offense level for Robinson’s conduct. U.S.S.G. § 2D1.1(c)(7)
No. 12-1391 3

& cmt. n.10(D). If the Fair Sentencing Act reduces his

mandatory minimum, his guidelines range would be ten

years. Robinson asked the district court to apply the

guidelines amendments retroactively to reduce his sentence. The district court denied the motion, again,

restating its conclusion that the Act did not apply to

Robinson, and the mandatory minimum sentence of

20 years remains intact.

On appeal, Robinson argues that the ten-year mandatory minimum under the Fair Sentencing Act should

apply to him so that he can be sentenced under the

amended guidelines range. (The government does not

argue that the district court’s decision last year refusing

to apply the Act retroactively to Robinson precludes

him from relitigating the matter, so like the parties

we proceed to the merits.) Section 3582(c)(2) permits a

court to reduce the term of imprisonment if the

defendant’s sentencing range “has subsequently been

lowered by the Sentencing Commission” and “such a

reduction is consistent with applicable policy statements

issued by the Sentencing Commission.” As for the second

condition, Application Note 1(A) of U.S.S.G. § 1B1.10

provides that a reduction is inconsistent with that policy

statement if “the amendment does not have the effect

of lowering the defendant’s applicable guideline range

because of the operation of another guideline or statutory

provision (e.g., a statutory mandatory minimum term

of imprisonment).” See United States v. Forman, 553 F.3d

585, 588 (7th Cir. 2009); United States v. Poole, 550 F.3d

676, 679 (7th Cir. 2008); United States v. Osborn, 679

F.3d 1193, 1195 n.1 (10th Cir. 2012). Thus, unless the Act
4 No. 12-1391

applies to Robinson, his applicable guideline range

remains constrained by the operation of the 20-year

mandatory minimum sentence.

Robinson maintains, as he did in his second motion

under Section 3582(c)(2), that the Act’s reduced

mandatory minimum applies to him even though his

conduct and sentence both occurred before August 3,

2010, the Act’s effective date. He cites Dorsey v. United

States, 132 S. Ct. 2321 (2012), to support his argument.

But Dorsey provides Robinson no relief. The Supreme

Court in Dorsey held only that “Congress intended the

Fair Sentencing Act’s new, lower mandatory minimums to apply to the post-Act sentencing of pre-Act offenders.” Id. at 2335 (emphasis added). The Act’s lower

mandatory minimums do not apply to offenders, like

Robinson, sentenced before its effective date. The Courts

of Appeals unanimously so held before the Supreme

Court decided Dorsey. See, e.g., United States v. Baptist, 646

F.3d 1225, 1229 (9th Cir. 2011) (collecting cases). And

Dorsey carefully confined its application of the Fair Sentencing Act to pre-Act offenders who were sentenced

after the Act. Robinson, therefore, has received the

lowest possible sentence under the statute.

AFFIRMED.

9-7-12