GARLAND, Chief Judge:
Darren Swangin appeals from the district court's partial denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). For the reasons set forth below, we affirm the judgment of the district court.
In April 2009, Swangin pled guilty to possessing with intent to distribute 50
At the time of Swangin's sentencing, offenses involving 50 grams or more of crack cocaine carried a statutory minimum sentence of 120 months. See 21 U.S.C. § 841(b)(1)(A)(iii) (2006). According to Swangin's presentence report, a sentencing range of 140 to 175 months' imprisonment was appropriate under the then-applicable United States Sentencing Guidelines, given Swangin's offense and criminal history. Presentence Investigation Report, at ¶ 81 (June 18, 2009). During Swangin's sentencing hearing, the district court expressed discomfort with sentencing Swangin to the Guidelines range, in light of the Guidelines' disparate treatment of crack and powder cocaine offenses. Sentencing Hr'g Tr. 2-4 (June 25, 2009). Recognizing that it could not sentence Swangin below the 120-month mandatory minimum, the district court imposed a sentence of 125 months: "slightly above the mandatory" minimum, the court said, because of the "kind of guns" Swangin possessed at the time of the offense and because of his criminal history, which reflected an "almost non-stop criminal existence." Id. at 11.
More than a year after Swangin was sentenced, Congress passed the Fair Sentencing Act of 2010, Pub.L. No. 111-220, 124 Stat. 2372. Under the Act, 50 grams of crack cocaine is no longer the threshold for the 120-month mandatory minimum sentence. Instead, 280 grams is the threshold for 120 months, while offenses involving at least 28 but fewer than 280 grams now carry a 60-month mandatory minimum. Id. § 2(a) (codified as amended at 21 U.S.C. § 841(b)(1)(A)(iii), (B)(iii)).
The Fair Sentencing Act directed the United States Sentencing Commission to "make such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law." Id. § 8. The Commission responded by reducing the base offense levels for quantities of crack cocaine, first on an emergency basis and then through a permanent amendment. See U.S. SENTENCING GUIDELINES MANUAL (USSG) App. C, Vol. III, Amend. 750 (2011). The Commission also determined that the new base offense levels should apply retroactively in sentence reduction proceedings under 18 U.S.C. § 3582(c)(2). USSG App. C, Vol. III, Amend. 759 (2011).
In February 2012, Swangin filed a motion pursuant to § 3582(c)(2), which allows the court to "reduce the term of imprisonment" for "a defendant who 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 district court found that, under the amended Guidelines, Swangin's recommended range was 100 to 125 months. Swangin requested that the court reduce his sentence to 100 months, the bottom end of his amended range. The district court reduced his sentence to 120 months, but found that it could go no lower because Swangin "is subject to a mandatory minimum sentence of 120 months based on the statutory mandatory minimums in effect at the time of his offense and sentencing." Order Regarding Mot. for Sentence Reduction, at 1 (Mar. 7, 2012).
Swangin's only argument on appeal is that the district court should have applied the Fair Sentencing Act's new 60-month
That Swangin received a § 3582(c)(2) sentence reduction after the Fair Sentencing Act became effective does not render Bigesby and Fields any less controlling. The Supreme Court's decision in Dillon v. United States, 560 U.S. 817, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010), makes clear that § 3582(c)(2) proceedings are not new sentencing proceedings. Section 3582(c)(2), the Court held, "does not authorize a sentencing or resentencing proceeding." 130 S.Ct. at 2690. Rather, it "authorize[s] only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding." Id. at 2691. Accordingly, that Swangin received a § 3582(c)(2) reduction after the Fair Sentencing Act's enactment does not change the fact that he was sentenced before its enactment and is therefore subject to the rule announced in our prior decisions.
Nor does Dorsey v. United States, ___ U.S. ___, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012), cited by Swangin, suggest a different outcome. In Dorsey, the Supreme Court held that the Fair Sentencing Act's reduced mandatory minimums apply to defendants sentenced after the Fair Sentencing Act's effective date, even if they were convicted before that date. In so holding, the Court recognized that this created a disparity, albeit a lawful one, between defendants sentenced after the Fair Sentencing Act's effective date and defendants (like Swangin) who were sentenced before that date and thus cannot benefit from the reduced mandatory minimums:
Id. at 2335 (emphasis added) (citations omitted).
In Fields, the court expressly addressed the consistency between this circuit's rule and the Supreme Court's opinion in Dorsey. The court noted that Bigesby, decided one day after the Supreme Court's opinion in Dorsey, had "squarely held that the [Fair Sentencing Act] is inapplicable to offenders ... who were sentenced before passage of the statute." 699 F.3d at 522. And it concluded that "Dorsey actually confirms our decision in Bigesby, for the Court expressly acknowledged that it was creating a disparity `between pre-Act offenders sentenced before [the Fair Sentencing Act's effective date] and those sentenced after that date.'" Id. (quoting Dorsey, 132 S.Ct. at 2335).
Finally, we note that every circuit that has addressed the question post-Dorsey has likewise concluded that courts cannot retroactively apply the Fair Sentencing Act's new mandatory minimums in § 3582(c)(2) proceedings to defendants who were sentenced before the Act's effective date.
Because our decisions in United States v. Bigesby and United States v. Fields preclude retroactive application of the new statutory mandatory minimum to a defendant who was sentenced before its enactment, the judgment of the district court is
Affirmed.