USA v. Gregory Bell

Filing

OPINION and JUDGMENT filed: The judgment of the district court is AFFIRMED. Decision for publication. Eugene E. Siler,Jr. (AUTHORING), R. Guy Cole, Jr. (CONCURRING), and David D. Dowd , Jr., U.S. District Judge for the Northern District of Ohio, sitting by designation.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0270p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 12-6495
v.
>
,
GREGORY A. BELL,
Defendant-Appellant. N
Appeal from the United States District Court
for the Western District of Kentucky at Owensboro.
No. 4:03-cr-00009-001—Joseph H. McKinley, Jr., Chief District Judge.

Decided and Filed: September 10, 2013
Before: SILER and COLE, Circuit Judges; DOWD, District Judge.*
_________________
COUNSEL
ON BRIEF: Frank W. Heft, Jr., Patrick J. Bouldin, OFFICE OF THE FEDERAL
DEFENDER, Louisville, Kentucky, for Appellant. Terry M. Cushing, UNITED
STATES ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee.
SILER, J., delivered the opinion of the court, in which COLE, J., and DOWD,
D. J., joined. COLE, J. (pg. 6), delivered a separate concurring opinion.
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OPINION
_________________
SILER, Circuit Judge. Defendant Gregory Bell appeals the district court’s denial
of a sentence modification pursuant to 18 U.S.C. § 3582(c)(2). In 2003, Bell pled guilty
to possession with intent to distribute crack cocaine, possession of a firearm in
furtherance of a drug crime, and possession of marijuana. After passage of the Fair
*

The Honorable David D. Dowd, Jr., United States District Judge for the Northern District of
Ohio, sitting by designation.

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Sentencing Act in 2010 (“FSA”), Bell moved for a sentence modification under
§ 3582(c)(2). The district court ruled that he was ineligible under the statute because his
sentencing range, which was based on the mandatory minimum, had not changed. We
AFFIRM the district court’s order in accordance with United States v. Hammond,
712 F.3d 333 (6th Cir. 2013).
I.
In 2003, Bell entered into a Rule 11(c)(1)(B) plea agreement. He admitted his
guilt to possession with intent to distribute fifty or more grams of crack cocaine in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii), possession of a firearm during
and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A), and
possession of marijuana in violation of 21 U.S.C. § 844. He agreed to a crack quantity
of 124.7 grams and to a base offense level of 32. With a three-point acceptance of
responsibility reduction, he had a total offense level of 29. His criminal history category
of II produced a Guidelines range of 97 to 121 months, but Bell’s drug quantity called
for a mandatory minimum sentence of 120 months, converting his range to 120 to 121
months. See 21 U.S.C. § 841(b)(1)(A)(iii); 18 U.S.C. § 924(c)(1)(A)(i)).
In 2003, the district court sentenced Bell to concurrent terms in prison of
120 months for the crack conviction and twelve months for the marijuana conviction,
and a consecutive sixty months for the § 924(c) conviction, for a total sentence of 180
months of imprisonment and a five-year term of supervised release. In 2009, the district
court denied Bell a crack cocaine sentence reduction under § 3582(c)(2) pursuant to
Amendment 706, which lowered the base offense level for most crack cocaine offenses
by two levels, because Bell was still subject to the mandatory minimum term of
120 months. We affirmed.
In August 2010, the FSA, Pub. L. No. 111-220, 124 Stat. 2372, was signed into
law. It lowered the statutory penalties for crack offenses under 21 U.S.C. § 841 and
directed the Sentencing Commission to amend the U.S. Sentencing Guidelines Manual
in accordance with these statutory changes. See 124 Stat. 2372. The Commission

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followed suit, promulgating Amendments 750 and 759. Amendment 750 lowered the
base offense levels for crack offenses in Guidelines § 2D1.1. See USSG Supp. to App.
C, amend. 750. Amendment 759 made Amendment 750 retroactive. See USSG Supp.
to App. C, amend. 759.
After the passage of the FSA, the district court appointed counsel to represent
Bell for the purpose of a § 3582(c)(2) proceeding. It also ordered that counsel be
provided with a copy of the Memorandum of Recalculation (“MOR”) prepared by the
probation office analyzing the application of the amendments to Bell’s case. The MOR
assigned Bell a new base offense level of 28, resulting in a total offense level of 25 due
to Bell’s acceptance of responsibility. This produced a new Guidelines range on the
crack cocaine charge of 63 to 78 months. The MOR noted that Bell’s consecutive sixtymonth sentence on the firearm charge would not change.
In response to the MOR, Bell filed an objection, arguing for a sentence reduction
to the amended range of 63 to 78 months, to run consecutive to the 60-month gun charge
sentence. The district court overruled his objection and denied a sentence reduction,
determining that it had no jurisdiction to grant it. It held, in reference to the Supreme
Court’s decision in Dorsey v. United States, 132 S. Ct. 2321 (2012), that the FSA applied
to those offenders who were sentenced after the FSA went into effect, so Bell was not
eligible because he was sentenced before its effective date.
II.
When a district court rules that it has no authority to revisit its sentence under
18 U.S.C. § 3582(c)(2), we review that question of law de novo. United States v.
Johnson, 569 F.3d 619, 623 (6th Cir. 2009).
III.
Bell argues that the holding in Dorsey warrants a sentence reduction in his case.
The government counters that Bell’s sentence was not based on a sentencing range that
the Sentencing Commission subsequently lowered, and, thus, he is not eligible for a
sentence modification under § 3582(c)(2). Although Bell would have been eligible for

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a sentence modification under the holding in United States v. Blewett, 719 F.3d 482 (6th
Cir. 2013), that opinion was recently vacated by our decision to grant an en banc
hearing. See Order, United States v. Blewett, Nos. 12-5226/12-5582 (6th Cir. July 11,
2013); see also 6th Cir. R. 35(b). The issue in this case is now squarely controlled by
Hammond, where we held that Dorsey rejected the argument advanced here by Bell. 712
F.3d at 335–36.
In Hammond, the defendant moved for a reduction of his sentence for a crack
cocaine offense under § 3582(c)(2) and the FSA, arguing that, under Dorsey, he was
eligible for re-sentencing because the amended mandatory minimums should apply to
all defendants who seek reduction of their sentence after the FSA’s effective date. 712
F.3d at 335. We found that the district court did not err in denying Hammond’s motion
for sentence reduction “[b]ecause Hammond’s sentencing range—the 120-month
mandatory minimum—has not ‘subsequently been lowered by the Sentencing
Commission,’ and was not an amendment incorporated into the Sentencing
Commission’s policy statement.” Ergo “the district court had no authority to further
reduce his sentence under § 3582(c)(2) to the new 60-month mandatory minimum
promulgated by the FSA.” Id. at 335–36. Hammond’s treatment of Dorsey is consistent
with prior applications of the FSA by this circuit in unpublished cases. See United States
v. Stanley, 500 F. App’x 407, 410–11 (6th Cir. 2012); United States v. Finley, 487 F.
App’x 260, 265–67 (6th Cir. 2012); United States v. Mundy, 486 F. App’x 598, 599 (6th
Cir. 2012). Moreover, Hammond’s holding is consistent with other circuits’ decisions.1

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See United States v. Reeves, 717 F.3d 647, 651 (8th Cir. 2013) (“We join the overwhelming
majority of our sister circuits and hold that the Fair Sentencing Act does not apply retroactively to
defendants who were sentenced before August 3, 2010, and who seek a reduction in their sentences under
section 3582(c)(2).”); United States v. Kelly, 716 F.3d 180, 181 (5th Cir. 2013) (“Dorsey expressly
acknowledged that defendants who committed a crime addressed in the FSA but who were sentenced
before the FSA’s effective date will be subject to a different result than those who committed the same
crime on the same date but were sentenced afterwards.”); United States v. Lucero, 713 F.3d 1024, 1027
(10th Cir. 2013) (“[T]he exception outlined in Dorsey is limited to sentences imposed post-FSA”); United
States v. Augustine, 712 F.3d 1290, 1294 (9th Cir. 2013) (“Congress did not, as the General Savings
Statute requires, express in the FSA any intention that the new mandatory minimums apply to those
sentenced before the effective date of the act.”); United States v. Foster, 706 F.3d 887, 888 (7th Cir. 2013)
(holding defendant sentenced in 2008 “is covered by the pre-2010 version of the cocaine statutes”); United
States v. Fields, 699 F.3d 518, 522 (D.C. Cir. 2012) (“the FSA is inapplicable to offenders . . . who were
sentenced before passage of the statute”), cert. denied, 133 S. Ct. 1609 (2013); United States v. Turlington,
696 F.3d 425, 428 (3d Cir. 2012) (same); United States v. Mouzone, 687 F.3d 207, 222 (4th Cir. 2012)
(same), cert. denied, 133 S. Ct. 899 (2013).

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Here, at Bell’s sentencing, the district court determined that his applicable
Guidelines range was 120 to 121 months and sentenced him to 120 months of
imprisonment. Because of our ruling in Hammond, Bell is still subject to the same 120month mandatory minimum, despite the enactment of the FSA and Amendments 750 and
759 to the Sentencing Manual. Therefore, the district court had no authority to reduce
Bell’s sentence under § 3582(c)(2) because Bell’s sentencing range—the 120-month
mandatory minimum—has not “subsequently been lowered by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2).
AFFIRMED.

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_________________________
CONCURRENCE
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COLE, Circuit Judge, concurring. I agree that United States v. Hammond,
712 F.3d 333 (6th Cir. 2013), requires us to affirm in this case. I write separately,
however, to note my view that Hammond does not foreclose all retroactive applications
of the Fair Sentencing Act in § 3582(c)(2) proceedings. See United States v. John Doe,
No. xx-xxxx (6th Cir. filed Aug. 27, 2013) (Cole, J., concurring in part and concurring
in the judgment). It only does so for the particular class of crack offenders sentenced to
mandatory minimum terms prior to the Act’s effective date. Hammond, 712 F.3d at 33536. Unfortunately, that is the class to which Bell belongs.