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w . v i l l a no v a . e du/thir dc ir c uit_2012/329NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 12

- 1105

___________ UNITED STATES OF AMERICA

v. STEVEN L. BELL, JR.,

Appellant

_______________________ On Appeal from the United States District Court for th e Eastern District of Pennsylvania D.C. Criminal No. 09

- cr - 00310

- 001 (Honorable Berle M. Schiller)

______________ Submitted Pursuant to Third Circuit LAR 34.1(a)

September 10, 2012 Before: SCIRICA, ROTH and BARRY, Circuit Judges

.

(Filed : October 2, 2012 )

_________________ OPINION OF THE COURT

_________________ SCIRICA, Circuit Judge

. Steven L. Bell , Jr. pleaded guilty to possession of cocaine base and a firearm and was sentenced on January 11, 2010 to 165 months’ imprisonment. After the Fair Sentencing Act of 2010 (FSA) lowered the mandatory minimum sentences for cocaine base offenses , and the Sentencing Commission reduced the offense levels applicable to2

these offenses , Bell filed a motion for reduction in sentence seeking the benefit of both reductions . The District Court reduced Bell’s sentence based on the amended Guidelines but concluded the pre

- FSA mandatory minimum sentence still applied. Bell argues the court erred by not retroactively applying the FSA’s more lenient man datory minimum provisions when considering his sentence reduction. We will affirm.
I Philadelphia police officers recovered 10.04 grams of cocaine base and a loaded handgun from Bell after a high

- speed chase ended in a crash on April 7, 2009. On September 30, 2009, Bell pleaded guilty to possession with intent to distribute five grams

or more of cocaine base , in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (count one) ; possession of a firearm during a drug trafficking crime , in violation of 18 U.S.C. § 924(c)(1) (count two) ; and possession of a firearm by a convicted felon , in violation of 18 U.S.C. § 922(g)(1) (count three)

. At the time of Bell’s sentencing, count one carried a mandatory minimum penalty of sixty months’ imprisonment . C ount two carried a mandatory minimum penalty of sixty months’ imprisonment, to run consecutively to any other sentence imposed. Based on an adjusted offense level of twenty

- three and a criminal history category of V, the Presentence Investigation Report determined Bell’s gu ideline range to be 84 to 105 months’ imprisonment on counts one and three. 1 Together with the mandatory sixty

-

1 Counts one and three grouped as closely related counts, under U.S. S ENTENCING G UIDELINES M ANUAL § 3D1.2(b) (2011).3

month con secutive term on count two, Bell’s effective guideline range was 144 to 165 months and t he court sentenced Bell to a total of 165 month s’ imprisonment. On August 3, 2010, nearly seven months after Bell’s sentencing, the FSA became law

. Pertinent to Bell’s appeal, the FSA raised the amount of cocaine base required to trigger the 60

- month mandatory minimum penalty from five to 28 grams, and authorized the Sentencing Commission to amend the Guidelines to reduce the sentencing disparity between powder cocaine and cocaine base violations. Fair Sentencing Act of 2010, Pub. L. No. 111

- 220, 124 Stat. 2372 (codified as amended in scattered sections of 21 & 28 U.S.C.). The new amendments went into effect on November 1, 2010, and on June 30, 2011, the Commission decided the amended Guid elines would apply retroactively

. Thereafter, Bell filed a motion for reduction in sentence u nder 18 U.S.C. § 3582( c)(2) , which authorizes a district court to reduce a sentence if a defendant “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). The parties ag reed Bell was entitled to a reduction in sentence, as the amended Guidelines reduced his adjusted offense level from 23 to 17. An offense level of 17, when coupled with Bell’s criminal history category of V, produces a range of 4 6 to 57 months’ imprisonme nt, and Bell urged the District Court to reduce his sentence on counts one and three to a term of i mprisonment within that range. The Government, however, argued the pre

- FSA mandatory minimum of 60 months on count one continued to apply, and thus contended the applicable Guideline range for cou nts one and three was 604

months

. 2 Bell argued the FSA’s more lenient provisions should apply and thus he should be subject to no mandatory minimum. The District Court agreed with the Government and concluded Bell’s Gu ideline range for counts one and three was 60 months. Accordingly, the District Court reduced Bell’s sentence on counts one and three to 60 months, for a total sentence of 120 months, as the mandatory minimum of 60 months on count two remained unchanged. Bell filed a timely notice of appeal, contending the District Court erred by failing to apply the more lenient mandatory minimum provisions of the FSA w hen considering his § 3582(c)(2) motion for reduction in sentence. 3
II
T he FSA ’s mandatory minimum prov isions do not apply to defendants sentenced before its enactment

. United States v. Reevey , 631 F.3d 110, 111 (3d Cir. 2010)

. In Reevey , the defendants pleaded guilty to possession of cocaine base an d were sentenced to the sixty

- month m andatory minimum pena lty

. Id. at 111

– 12. The FSA became law during the pendency of their appeals and the defendants argued that the more lenient provisions of the FSA should apply

. Id

. at 113

- 14

. We disagreed and held the FSA’s mandatory minimum provisions do not apply to def endants sentenced before the enactment of the FSA. Id. a t 115

.

2 “Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statu torily required minimum sentence shall be the guideline sentence.” U.S. S ENTENCING G UIDELINES M ANUAL § 5G1.1(b) (2011). 3 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).5

Bell committed his crimes and was sentenced before the enactment of the FSA. The reduction of his sentence under 18 U.S.C. § 3582(c)(2) does not constitute a sentencing or resentencing. Dill on v. United States , 130 S. Ct. 2683, 2690 (2010). Thus, Bell , as a defendant sentenced before the enactment of the FSA, falls squarely within the rule set forth in Reevey

. Bell, however, contends that Reevey does not apply to his case. He argues the
l ogic of our decision in United States v. Dixon , 648 F.3d 195 (3d Cir. 2011), requires the FSA’s mandatory minimum provisions to apply. In Dixon , we were presented with the question of which manda tory minimum provision to apply

– pre - FSA or FSA

– to a defen dant who committed his crime before the FSA’s enactment , but who was sentenced after wards

. Id. at 196. Looking to the FSA’s text, we noted Congress’s urgency in directing the Sentencing Commiss ion to amend the Guidelines to achieve consistency with the FSA ’s new mandatory minimum s . Id. at 201

– 02. We reasoned there would be no urgent need to amend the Guidelines unless Congress intended for the new mandatory minimum provisions to have immediate effect. Id. Accordingly, we held the FSA’s mandatory minimum pro visions applied to all defendants sentenced after its enactment, regardless of when the offense conduct occurred. Id. at 203. Bell argues the logic of Dixon

– that Congress intended to achieve consistency in the application of the FSA’s mandatory minimum a nd the amended Guidelines

– requires the FSA’s mandatory minimum provisions to apply anytime the amended Guidelines entitle the defenda nt to a re duction in sentence. But Bell has misread our decision in
Dixon . In Dixon , we only considered whether the FSA should apply to defendants who6

were sente nced after the FSA’s enactment. Accordingly, we conclude the District Court did not err by applying the pre

- FSA’s mandatory minimum provisions. 4
I II For the foregoing reasons, we will affirm the judgment of convict ion and sentence

.

4 Dur ing the pendency of this appeal, the Supreme Court held, as we did in Dixon , the FSA applies to all defendants sentenced after its enactment. See Dorsey v. United States , 132 S. Ct. 23 2 1 , 2326 (2012). As with Dixon , the rationale of Dorsey does not dicta te the result sought by Bell

.