Case: 12-12651   Date Filed: 09/04/2013   Page: 1 of 4




                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-12651
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:08-cr-60248-WJZ-2


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

NAKILA GORDON,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (September 4, 2013)

Before HULL, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 12-12651    Date Filed: 09/04/2013   Page: 2 of 4


      Nakila Gordon, a federal prisoner convicted of crack cocaine offenses,

appeals the denial of her counseled 18 U.S.C. § 3582(c)(2) motion to reduce her

sentence based on Amendment 750 to the Sentencing Guidelines and the Fair

Sentencing Act of 2010 (“FSA”). After review, we affirm.

      Under § 3582(c)(2), a district court has the authority to reduce a defendant’s

prison term if it was “based on a sentencing range that has subsequently been

lowered by the Sentencing Commission pursuant to 28 U.S.C. [§] 994(o).” 18

U.S.C. § 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1). If, however, the

defendant’s sentencing range is not lowered by a retroactively applicable guideline

amendment, the district court has no authority to reduce the defendant’s sentence.

United States v. Moore, 

, 1330 (11th Cir. 2008); U.S.S.G.

§ 1B1.10(a)(2)(B). Thus, a reduction is not authorized if an applicable amendment

does not lower a defendant’s guidelines range “because of the operation of another

guideline or statutory provision,” such as the statutory mandatory minimum term

of imprisonment. U.S.S.G. § 1B1.10 cmt. n.1(A); see also United States v. Glover,

, 1206 (11th Cir. 2012) (explaining that a sentence reduction is not

authorized “where the difference in the initial calculation would have made no




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difference because a mandatory minimum would have trumped the initial

calculation and dictated the final guidelines range anyway”). 1

       Gordon’s initial advisory guidelines range was 97 to 121 months’

imprisonment using a base offense level of 32 under U.S.S.G. § 2D1.1. Because

the mandatory minimum under 21 U.S.C. § 841(b)(1)(A) was ten years, or 120

months, Gordon’s guidelines range became 120 to 121 months. See U.S.S.G.

§ 5G1.1(c)(2) (prohibiting the district court from imposing a guidelines sentence

below the statutory mandatory minimum sentence).

       At Gordon’s April 17, 2009 sentencing, the district court imposed the

mandatory-minimum 120-month sentence required by § 841(b)(1)(A). Thus, even

if Amendment 750 changed Gordon’s base offense level under U.S.S.G. § 2D1.1

from 32 to 28, it did not actually lower her applicable guidelines range. See

.

       Gordon contends that she is eligible for a § 3582(c)(2) sentence reduction

because the FSA lowered the mandatory minimum sentence for her offense from

ten years to five years. See Pub. L. No. 111-220 § 2(a), 124 Stat. 2372 (2010).

The FSA, however, does not serve as a basis for a § 3582(c)(2) sentence reduction

because it is a statutory change implemented by Congress, not a guidelines


       1
        We review de novo the district court’s legal conclusions regarding the scope of its
authority under 18 U.S.C. § 3582(c)(2). United States v. Liberse, 

, 1200 n.1 (11th
Cir. 2012).
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amendment enacted by the Sentencing Commission. See United States v. Berry,

, 377 (11th Cir. 2012). Furthermore, the FSA does not apply

retroactively to defendants like Gordon who were sentenced before its August 3,

2010 enactment. Id.; see also United States v. Hippolyte, 

, 542 (11th

Cir. 2013). Thus, neither Amendment 750 nor the FSA provided a basis for the

district court to reduce Gordon’s sentence under § 3582(c)(2).

      Accordingly, we affirm the district court’s denial of Gordon’s § 3582(c)(2)

motion to reduce her sentence.

      AFFIRMED.




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