United States v. Daxtrell D. Robinson

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1391
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D AXTRELL R OBINSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 04-CR-20063—Michael P. McCuskey, Judge.
S UBMITTED A UGUST 20, 2012—D ECIDED S EPTEMBER 7, 2012
Before C UDAHY, K ANNE, and S YKES, Circuit Judges.
P ER C URIAM. Daxtrell Robinson moved the district
court to reduce his sentence based on retroactive amend-
ments to the Sentencing Guidelines and the Fair Sen-
tencing Act. See 18 U.S.C. § 3582(c)(2). The district court
denied the motion. Because Robinson was sentenced to
the statutory minimum and the Fair Sentencing Act
does not apply to him, we affirm.
Robinson pleaded guilty in 2005 to possessing 50 grams
or more of crack cocaine. See 21 U.S.C. § 841(a)(1). The
2 No. 12-1391
government filed a recidivism enhancement, which
raised the minimum prison term for this offense to
20 years. See id. §§ 841(b)(1)(A)(iii), 851 (2004). The
district court imposed the minimum sentence of 20 years.
Three years later Robinson moved under § 3582(c)(2)
to reduce his sentence based on amendments 706 and
713 to the guidelines, which retroactively reduced his
base offense level from 32 to 28. U.S.S.G. App. C, Vol. III
226-231, 253 (2011). The district court denied the
motion because Robinson’s sentence was based on
the statutory minimum, which remained unchanged.
After three more years, Robinson filed a second
§ 3582(c)(2) motion in 2011, this time asking the
district court to apply to him the Fair Sentencing Act
of 2010, Pub. L. No. 111-220, § 2(a)(2), 124 Stat. 2372. If
the Act applied to Robinson, he would have faced a
mandatory minimum penalty of 10 years rather than
20 years. Compare 21 U.S.C. § 841(b)(1)(B)(iii) (2006 &
Supp. IV 2010), with id. § 841(b)(1)(A)(iii) (2004). The
district court denied the motion because, it reasoned,
the Fair Sentencing Act did not apply to Robinson,
whose crime and sentencing both took place long before
the Act.
In 2012 Robinson again moved to reduce his sen-
tence, this time based on the combined effects of amend-
ments 748 and 750 to the guidelines and the Fair Sen-
tencing Act. See U.S.S.G. Supp. to App. C, Vol. III 374-84,
391-98 (2011). The amendments, effective November 1,
2011, retroactively reduced from 28 to 26 the base
offense level for Robinson’s conduct. U.S.S.G. § 2D1.1(c)(7)
No. 12-1391 3
& cmt. n.10(D). If the Fair Sentencing Act reduces his
mandatory minimum, his guidelines range would be ten
years. Robinson asked the district court to apply the
guidelines amendments retroactively to reduce his sen-
tence. The district court denied the motion, again,
restating its conclusion that the Act did not apply to
Robinson, and the mandatory minimum sentence of
20 years remains intact.
On appeal, Robinson argues that the ten-year manda-
tory minimum under the Fair Sentencing Act should
apply to him so that he can be sentenced under the
amended guidelines range. (The government does not
argue that the district court’s decision last year refusing
to apply the Act retroactively to Robinson precludes
him from relitigating the matter, so like the parties
we proceed to the merits.) Section 3582(c)(2) permits a
court to reduce the term of imprisonment if the
defendant’s sentencing range “has subsequently been
lowered by the Sentencing Commission” and “such a
reduction is consistent with applicable policy statements
issued by the Sentencing Commission.” As for the second
condition, Application Note 1(A) of U.S.S.G. § 1B1.10
provides that a reduction is inconsistent with that policy
statement if “the amendment does not have the effect
of lowering the defendant’s applicable guideline range
because of the operation of another guideline or statutory
provision (e.g., a statutory mandatory minimum term
of imprisonment).” See United States v. Forman, 553 F.3d
585, 588 (7th Cir. 2009); United States v. Poole, 550 F.3d
676, 679 (7th Cir. 2008); United States v. Osborn, 679
F.3d 1193, 1195 n.1 (10th Cir. 2012). Thus, unless the Act
4 No. 12-1391
applies to Robinson, his applicable guideline range
remains constrained by the operation of the 20-year
mandatory minimum sentence.
Robinson maintains, as he did in his second motion
under Section 3582(c)(2), that the Act’s reduced
mandatory minimum applies to him even though his
conduct and sentence both occurred before August 3,
2010, the Act’s effective date. He cites Dorsey v. United
States, 132 S. Ct. 2321 (2012), to support his argument.
But Dorsey provides Robinson no relief. The Supreme
Court in Dorsey held only that “Congress intended the
Fair Sentencing Act’s new, lower mandatory mini-
mums to apply to the post-Act sentencing of pre-Act of-
fenders.” Id. at 2335 (emphasis added). The Act’s lower
mandatory minimums do not apply to offenders, like
Robinson, sentenced before its effective date. The Courts
of Appeals unanimously so held before the Supreme
Court decided Dorsey. See, e.g., United States v. Baptist, 646
F.3d 1225, 1229 (9th Cir. 2011) (collecting cases). And
Dorsey carefully confined its application of the Fair Sen-
tencing Act to pre-Act offenders who were sentenced
after the Act. Robinson, therefore, has received the
lowest possible sentence under the statute.
A FFIRMED.
9-7-12