NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 12-4398
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                             LORENZO GIL-DELACRUZ,
                                                Appellant
                                 ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF DELAWARE
                              (D.C. No. 1-10-cr-00039)
                    District Judge: Honorable Leonard P. Stark
                                  ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                    July 8, 2013
                                  ______________

        Before: GREENAWAY, JR., SLOVITER, and BARRY, Circuit Judges.

                           (Opinion Filed: September 3, 2013)

                                    ______________

                                       OPINION
                                    ______________

GREENAWAY, JR., Circuit Judge.

      Appellant Lorenzo Gil-Delacruz (“Appellant”) asks us to review the District

Court’s denial of his 18 U.S.C. § 3582(c) motion. He argues that the District Court
should have reached the merits of his motion pursuant to its authority under

§ 3582(c)(1)(B). For the reasons set forth below, we will affirm.

                    I.   FACTS AND PROCEDURAL HISTORY

       Because we write primarily for the benefit of the parties, we recount only the facts

essential to our discussion. In mid-2010, a federal grand jury indicted Appellant on

charges of possessing with intent to distribute fifty grams or more of cocaine base.

Shortly thereafter came the Fair Sentencing Act of 2010 (“FSA”), which took effect in

August of that year. In February 2011, Appellant pled guilty to a one-count Information

which charged that he possessed with intent to distribute “5 grams or more of a mixture

and substance containing a detectable amount of cocaine base” in violation of 21 U.S.C.

§ 841(a)(1). (App. at 26.) The plea agreement likewise referred to “5 grams or more of a

mixture and substance containing cocaine base.” (Id. at 32.)

       At the plea hearing, Appellant confirmed that he had possessed “more than five

grams” of cocaine base. (Sup. App. at 20-21.) The Government then recited the salient

facts of the case, explaining that Appellant possessed over 100 grams of crack cocaine on

his person (in a small glassine envelope secreted in his mouth) and in his residence. (See

following this recitation, the Court asked whether Appellant

or his counsel wished to challenge the Government’s facts. (Id. at 23-24.) Appellant’s

counsel declined to “challenge or amend anything in the Government’s recitation of

the[se] facts,” (id.), and Appellant himself noted that he had no strong disagreement with

“any of the Government’s factual representations,” (id. at 24). Finally, Appellant



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confirmed his understanding that “the count to which [he was] pleading guilty carrie[d] a

minimum mandatory [sic] sentence of five years incarceration.” 1 (Id. at 14-15.)

         In September 2011, a month after this Court found the FSA to be retroactive in

United States v. Dixon, 

(3d Cir. 2011), the District Court held Appellant’s

sentencing hearing. At that hearing, Appellant did not object to the Presentencing

Report, which again stated that he possessed with intent to distribute over 100 grams of

crack cocaine and calculated the applicable Guidelines Range according to the post-FSA

numbers. (App. at 53-54.) Nor did he disagree that, given the amount of crack cocaine at

issue, a mandatory minimum sentence of 60 months applied. 2 (See, e.g., 

1
    The mandatory minimum sentence is set forth in 21 U.S.C. § 841(b)(1)(B):
         (b) Penalties
         Except as otherwise provided . . . any person who violates subsection (a) of this
         statute shall be sentenced as follows:
                (1) . . . (B) In the case of a violation of subsection (a) of this section
                involving —
                      (iii) 28 grams or more of a mixture or substance . . . which contains
                cocaine base;
         Such person shall be sentenced to a term of imprisonment which may not be less
         than 5 years . . . .
21 U.S.C. § 841(b)(1)(B)(iii). Prior to the FSA, the same section had required only “5 or
more grams” of such substance to trigger the mandatory minimum sentence. 21 U.S.C.
§ 841(b)(1)(B) (2006). At the time of Appellant’s plea hearing, we had not yet resolved
the question of whether the FSA retroactively applies to individuals, like Appellant,
whose crimes occurred prior to the FSA’s enactment but were sentenced after.
2
  Indeed, it was Appellant who asked for the 60-month mandatory minimum prescribed
by the FSA. In a letter filed with the District Court prior to the sentencing hearing,
Appellant’s counsel argued in favor of retroactively applying the FSA, “respectfully
contend[ing] that the court apply the new mandatory minimum standard set forth in the
Fair Sentencing Act of 2010 and sentence [Appellant] only to that minimum period of
incarceration.” (App. at 42.) At the sentencing hearing, Appellant returned to this point,
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COURT: . . . It seems there is no dispute that the minimum mandatory is 60 months.

[APPELLANT’S COUNSEL]: That is exactly right. For pure numbers, that is

correct.”). Ultimately, the District Court ruled that, given the applicable post-FSA

Guidelines Range of 63 to 78 months, it would “vary downward from the bottom of the

advisory range of 63 down to the mandatory minimum of 60 months.” (Id. at 83.)

       A half-year later, Appellant filed a pro se motion for modification of sentence,

captioned: Ҥ 1B1.10 Reduction in Term of Imprisonment as Result of Amended

Guidelines Amendment Pursuant to 3582(c)(2).” (Id. at 86.) Appellant’s counsel also

filed a brief in support of the motion, captioned “Defendant Gil-Delacruz’s Brief in

Support of Sentence Reduction under Guideline Amendment 750.” (Id. at 102.) In

essence, Appellant contended that the FSA had reduced his applicable Guidelines Range

and, separately, that he should not have been subject to the post-FSA mandatory

minimum sentence given that he pled guilty to possessing with intent to distribute “5 or

more” grams of crack cocaine rather than the “28 or more” now required to trigger the

mandatory minimum under the amended version of 21 U.S.C. § 841(b)(1)(B). (See 

counsel arguing that “notwithstanding the application or impact of the plea
agreement in this case and notwithstanding the actual guidelines which I know are
retroactive in this case, the actual mandatory minimum, the new mandatory minimum
[under the FSA] should apply in this case, and I suggest there is ample authority for that.”
(Id. at 50; see also 

that Appellant’s counsel sent the letter
“because [he] thought it was important” since “[t]he Court could hang its hat on either the
mandatory minimum and the application of the plea agreement or it could hang its hat on
the notion that the Court finds that the Fair Sentencing Act is in fact retroactive and
applicable [to] this case”).)

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       In November 2012, the District Court denied the motion. The District Court

explained that Appellant had been sentenced under the post-FSA guidelines and was also

subject to the 60-month mandatory minimum sentence. Since Appellant “ha[d] already

received the benefit of the Sentencing Commission’s 2010 and 2011 amendments [as a

result of the FSA],” the District Court ruled that it did not “have the authority pursuant to

Section 3582(c) to reduce [Appellant’s] sentence.” (Id. at 4.) The District Court also

explained that Appellant’s contention that he should not have been subject to the

mandatory minimum sentence “[did] not provide grounds for relief pursuant to Section

3582.” 3 (Id. at 5.)

       Appellant does not seem to quarrel with the District Court’s resolution of the

§ 3582(c)(2) issue regarding his applicable Guidelines Range. Rather, he now argues that

the District Court had authority to reduce his sentence pursuant to § 3582(c)(1)(B), which

permits a district court to modify a sentence “to the extent otherwise expressly permitted

by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” 18 U.S.C.

§ 3582(c)(1)(B). According to Appellant, the FSA expressly permits retroactive sentence

modification here.

                II.    JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction over Appellant’s case pursuant to 18 U.S.C.

§ 3231. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Because




3
 We note, in passing, that throughout this months-long process, the only §3582(c)
subsection explicitly mentioned in any of the relevant papers had been § 3582(c)(2).

                                              5
this case raises a “purely legal question” for interpreting 18 U.S.C. § 3582(c)(1)(B), our

review is plenary. See United States v. Ware, 

, 531 (3d Cir. 2012).

                                    III.   ANALYSIS

       We think it unnecessary to definitively resolve Appellant’s argument as we fail to

see what Appellant would gain even if we agreed with him that the District Court had

authority pursuant to § 3582(c)(1)(B). Were we to remand Appellant’s motion for further

consideration, he would still be subject to a 60-month mandatory minimum sentence.

Although the FSA increased the threshold amount for imposition of the 60-month

mandatory minimum sentence in 21 U.S.C. § 841(b)(1)(B) from “5 or more” to “28 or

more” grams of crack cocaine and the Information and plea agreement both stated that

Appellant possessed “5 or more” grams of the substance, at the plea hearing Appellant

did reiterate that he possessed “more than five” grams of crack cocaine and he validated

the veracity of the Government’s factual recitation — which described him as being in

possession of more than 100 grams.

       Thus, even if we were to assume away the potential legal impediments to

Appellant’s position and accept that (1) the FSA expressly permits retroactive sentence

modification pursuant to 18 U.S.C. § 3582(c)(1)(B); (2) a motion pursuant to 18 U.S.C.

§ 3582(c)(1)(B) could be a proper vehicle for challenging the imposition of a mandatory

minimum sentence, but see United States v. Carter, 

(6th Cir. 2007)

(“[W]hen a motion titled as a § 3582 motion otherwise attacks the petitioner’s underlying

conviction or sentence, that is an attack on the merits of the case and should be construed

as a [28 U.S.C.] § 2255 motion.”); and (3) the complete lack of a direct citation to 18

                                             6
U.S.C. § 3582(c)(1)(B) in any of the papers before the District Court does not otherwise

constrain Appellant’s ability to obtain the relief he seeks, we would return to the same

point: Appellant admitted that he possessed more than 100 grams of crack cocaine with

intent to distribute.

       In light of this admission, the post-FSA mandatory minimums would still apply.

See Blakely v. Washington, 

, 303 (2004) (“[T]he ‘statutory maximum’ for

[purposes of Apprendi v. New Jersey, 

(2000)] is the maximum sentence a

judge may impose solely on the basis of the facts reflected in the jury verdict or admitted

by the defendant.”); see also United States v. Burke, 

, 887 (5th Cir. 2005)

(explaining that accepting the Government’s recitation of fact during a plea colloquy as

accurate amounts to an admission).

                                 IV.    CONCLUSION

       For the reasons discussed above, we affirm the District Court’s denial of

Appellant’s motion to modify his sentence.




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