Mandatory Minimum at Original Sentencing Applies to Modification Hearing Notwithstanding Dorsey

United States v. Kelly, No. 12-30936 (May 13, 2013) (Jones, Dennis, Haynes)

The panel affirmed that Kelly was subject to the 10-year mandatory minimum in place at the time of his original sentencing in 2004, not the 5-year mandatory minimum in place at the time of his modification hearing pursuant to 18 U.S.C. § 3582(c)(2) hearing. The panel found that Dorsey v. United States, 132 S. Ct. 2321 (2012), did not change precedent regarding § 3582(c)(2) hearings. Since a modification hearing pursuant to § 3582(c)(2) is not an original sentencing hearing, the mandatory minimum that existed at the time of the original sentencing still applies.

In 2004, Kelly pleaded guilty to possession with intent to distribute 50 grams or more of cocaine base and possession of a firearm during a drug-trafficking offense. He was sentenced to 121 months in prison. The Fair Sentencing Act ("FSA") of 2010 changed the statutory minimum for 50 grams or more of cocaine from 10 years to 5 years. Kelly filed a motion to reduce pursuant to § 3582(c)(2) based on Amendment 750 to the U.S. Sentencing Guidelines, which lowered the base offense levels for crack cocaine offenses in conformity with the FSA. The district court modified the sentence to 120 months after determining that it could not reduce the sentence further due to the mandatory minimum in effect at the time of his original sentencing. The panel affirmed.