United States v. Donta Bell , 545 F. App'x 179 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-4370
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UNITED STATES OF AMERICA
v.
DONTA JAVON BELL,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 2-08-cr-00059-001
District Judge: The Honorable Gary L. Lancaster
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
November 22, 2013
Before: AMBRO, SMITH and CHAGARES, Circuit Judges
(Filed: December 3, 2013)
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OPINION
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SMITH, Circuit Judge.
Donta Javon Bell (“Bell”) is an inmate convicted of distribution and
possession with intent to distribute 50 grams or more of cocaine base (“crack”).
Bell appeals from an order of the United States District Court for the Western
District of Pennsylvania that denied Bell’s motion for a reduction in sentence to 87
months but granted Bell a reduction in sentence to 120 months (the mandatory
minimum sentence at the time Bell was convicted). For the reasons set forth
below, we will affirm.
In 2007, Bell sold 167.7 grams of crack to a confidential government
informant in a series of controlled buys. He was arrested and indicted in
connection with these drug transactions.
On July 24, 2008, Bell pled guilty to one count of distribution and
possession with intent to distribute 50 grams or more of cocaine base, in violation
of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii). Under the then-current version of
Section 2D1.1 of the United States Sentencing Guidelines, the guideline range for
Bell’s offense was 135–168 months. Since Bell’s offense involved more than 50
grams of a mixture or substance containing a detectable amount of crack cocaine,
under the then-current version of 21 U.S.C. § 841(b)(1)(A)(iii), Bell was subject to
a mandatory minimum prison term of 10 years (120 months). On October 24,
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2008, the District Court sentenced Bell to 135 months’ imprisonment. Bell did not
appeal his original sentence.
In August 2010—almost two years after Bell was sentenced—Congress
passed the Fair Sentencing Act (the “FSA”) in order “[t]o restore fairness to
Federal cocaine sentencing.” Pub. L. 111-220, 124 Stat. 2372 (2010). Among
other changes, the FSA raised the quantities of crack required to trigger a
mandatory minimum sentence under 21 U.S.C. § 841(b). Relevant to Bell’s case,
the FSA raised the amount of crack required for a minimum 10-year sentence from
50 grams to 280 grams.
Congress gave the United States Sentencing Commission authority to
implement amendments to the Sentencing Guidelines to conform the guidelines to
the revised penalty structure in the FSA. In response, the Sentencing Commission
amended U.S.S.G. § 2D1.1 to decrease the offense levels applicable to specific
weights of crack. In June 2011, it was announced that the crack guideline
amendments would apply retroactively to offenders serving terms of
imprisonment. The retroactivity of the crack guideline amendments became
effective on November 1, 2011.
On January 4, 2012, Bell filed a motion pursuant to 18 U.S.C. § 3582(c)(2)
seeking a reduction in his sentence based on the FSA and crack guideline
amendments. Bell urged the District Court to ignore the 10-year mandatory
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minimum sentence that was in effect at the time he was convicted and argued that
the District Court should reduce his sentence to 87 months, the lower parameter of
his newly calculated guideline range under the FSA. The government did not
oppose a sentence reduction in principle, but argued that the reduced sentence
could not fall below the 10-year mandatory minimum to which Bell was subject at
the time he was sentenced. On November 13, 2012, the District Court reduced
Bell’s sentence to 120 months but declined to reduce his sentence to 87 months.
This timely appeal followed.1
Bell’s appeal raises only an issue of law, and thus our review is plenary.
United States v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009); United States v. Wood,
526 F.3d 82, 85 (3d Cir. 2008). The District Court correctly held that the lower
guideline sentence of 87 months did not apply to Bell because he was convicted
and sentenced prior to the effective date of the FSA. See United States v. Reevey,
631 F.3d 110, 114–15 (3d Cir. 2010); United States v. Turlington, 696 F.3d 425,
428 (3d Cir. 2012). It properly held that Dorsey v. United States, 132 S. Ct. 2321
(2012), does not apply to Bell. Dorsey addresses the applicability of the FSA to
defendants who were convicted of crack offenses prior to the FSA’s effective date
of August 3, 2010, but were sentenced after that date, whereas Bell was both
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The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
appellate jurisdiction pursuant to 28 U.S.C. § 1291.
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convicted and sentenced prior to the enactment of the FSA. See Turlington, 696
F.3d at 428 (“[Dorsey] does not address, or disturb, the basic principle that the
FSA does not apply to those defendants who were both convicted and sentenced
prior to the effective date of the FSA.”). Thus, the District Court did not err in
reducing Bell’s sentence to 120 months while declining to reduce his sentence to
87 months.
Accordingly, we will affirm.
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