MARK R. HORNAK, District Judge.
Mr. Brown was sentenced on September 1, 2005 to a 130-month term of imprisonment. The term consisted of 70-month concurrent terms of imprisonment at Count One for possession with intent to distribute a mixture with a cocaine base (commonly known as "crack"), 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii), and at Count Two for possessing a firearm as a felon, 18 U.S.C. § 922(g). The sentence also included a consecutive 60-month sentence at Count Three for carrying a firearm in relation to a drug trafficking crime, 18 U.S.C. § 924(c). Mr. Brown asks this Court to reduce his concurrent 70-month sentences at Counts One and Two to 46 months, resulting in a total incarceration of 106 months, due to changes made by the Fair Sentencing Act of 2010 ("FSA") to the federal criminal statutes and Sentencing Guidelines governing the possession and distribution of crack cocaine. The Court held oral argument on Defendant's Motion for Reduction of Sentence, ECF No. 43, and has considered the parties' multiple rounds of customary and supplemental briefing, as requested by the Court, see ECF Nos. 43, 44, 45, 48, 49, 50, 51, 52, 53. In addition, the Court has given full weight to a series of prior and intervening decisions of our Court of Appeals bearing on the matter. For the reasons that follow, Defendant's motion will be granted in part and denied in part. The Court concludes that it has the authority to reduce Defendant's concurrent sentences at Counts 1 and 2 from 70 to 60 months (and only that authority), and it will direct the parties to file memoranda relative to sentencing factors applicable to Mr. Brown's situation as to whether the Court in its discretion should grant such a reduction.
The Third Circuit has recently summarized the effect of the FSA and its concomitant Amended Sentencing Guidelines.
In 2010, Congress passed the Fair Sentencing Act ("FSA") to "restore fairness to Federal cocaine sentencing" by changing the threshold quantities of crack cocaine that trigger mandatory minimum sentences. Pub. L. 111-220, § 2, 124 Stat. 2372, 2372 (2010). Pursuant to its authority to amend the Guidelines consistent with the FSA, id. § 8, the Commission promulgated Amendment 750. This amendment reduced the crack-related offense levels in § 2Dl.l of the Guidelines. The Commission made Amendment 750 retroactive by adding it to the list of amendments on the basis of which prisoners can move for reduced sentences. See U.S.S.G., App. C., amd. 759. That list appears in subsection (c) of the Commission's policy statement at § 1B1.10 of the Guidelines, which governs sentence reductions as a result of amendments to the Guidelines.
United States v. Berberena, 694 F.3d 514, 517-18 (3d Cir. 2012), cert. denied, 133 S.Ct. 1473 (U.S. 2013).
On January 3, 2012, Mr. Brown moved for a reduction of his sentence under 18 U.S.c. § 3582(c)(2). That provision establishes an exception to the general rule that a court may not modify a term of imprisonment once it has been imposed, and provides:
[I]n the case of 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 pursuant to 28 U.S.C. 994(0)... the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2). As a result of Amendment 750, Mr. Brown's range for Count I, the crack offense, changed from 70-87 months to 46-57 months. However, Count I was also subject to a statutory mandatory minimum sentence of 60 months. See 21 U.S.C. § 841(b)(1)(B)(iii) (2006). As noted above, the FSA raised the threshold quantities of crack cocaine that trigger mandatory minimum sentences. If Mr. Brown were sentenced today, he would no longer be subject to a mandatory minimum sentence for possessing 24 grams of crack, since the amount to trigger the mandatory minimum has been raised to 28 grams. See id. § 841(b)(1)(B)(iii) (2012); see also United States v. Dorsey, 132 S.Ct. 2321, 2329 (2012).
The parties do not dispute that the reduced Amended Guidelines range is retroactive for Mr. Brown, nor that § 3582(c)(2) is the proper vehicle for him to seek such a reduction. However, they do dispute whether the mandatory minimum under the FSA (or lack thereot) is retroactive for him. Mr. Brown argues that he should be able to take advantage of the newer mandatory minimum, and therefore that he is able to be sentenced at the bottom of his Amended Guideline range, 46 months; the Government argues that because the original mandatory minimum is still binding on Mr. Brown, its 60 months still serve as a floor for his modified sentence, and thus at best, he would be eligible for a reduction in his sentence from 70 months to 60 months. Second, the Government argues that even if the Court were to reduce Mr. Brown's sentence by 10 months at Count 1, such a reduction would be "potential[ly] futil[e], " because the Court would not have the authority to reduce Mr. Brown's concurrent 70-month sentence at Count 2. ECF No. 48 at 6-7. Finally, the Government argues that even if the Court were to reduce Mr. Brown's sentence by 10 months at Count 1/Count 2, if the Bureau of Prisons determines that Mr. Brown has already completed his 70 months for Count 1/Count 2, and is now serving his mandatorily consecutive 60 months for Count 3, the effect of the reduction would be "theoretical, since the reduction would be absorbed entirely by 10 months of the time Brown already has served." Id. at 7. These three issues are addressed in tum.
A. Retroactivity of the FSA Mandatory Minimum
When it comes to the retroactivity of the FSA, this Court does not write on a blank slate. In United States v. Reevey, 631 F.3d 110, 115 (3d Cir. 2010), our Court of Appeals held that the FSA's new mandatory minimum cannot be applied retroactively to defendants who, like Mr. Brown, were sentenced before the FSA's effective date, August 3, 2010. The following year, in United States v. Dixon, 648 F.3d 195, 199 (3d Cir. 2011) the court held that notwithstanding Reevey, defendants who committed their crimes before the FSA's effective date, but were sentenced after that date, could still take advantage of the FSA. Then, the following year, in United States v. Dorsey, 132 S.Ct. 2321, 2335 (2012), the Supreme Court resolved a circuit split and held that the FSA's new mandatory minimums apply to the post-Act sentencing of pre-Act offenders, confirming this Circuit's rule in Dixon. Lest there be any confusion about the vitality of Reevey in the wake of Dorsey, in United States v. Turlington, 696 F.3d 425, 438 (3d Cir. 2012), our Court of Appeals made very clear that Dorsey "does not address, or disturb, the basic principle [of Reevey] that the FSA does not apply to those defendants who were both convicted and sentenced prior to the effective date of the FSA." As a defendant who both committed his offense and was sentenced before the effective date of the FSA, Mr. Brown falls in the ambit of Reevey.
Defendant seeks to distinguish Reevey on the ground that it considered arguments made on direct appeal ofa sentence, rather than in the context ofa § 3582(c)(2) motion for a reduction of sentence. This argument has been consistently and squarely rejected by a host of cases from our Court of Appeals refusing to apply the FSA to individuals sentenced before its effective date and seeking relief under § 3582(c)(2). See United States v. Pratt, 12-3422, 2013 WL 864464 (3d Cir. Mar. 8, 2013) (unreported); United States v. Curry, 488 F.Appx. 616 (3d Cir. 2012); United States v. Bell, 12-1105, 2012 WL 4503198 (3d Cir. Oct. 2, 2012) (unreported); United States v. Crute, 484 F.Appx. 690 (3d Cir. 2012); United States v. Surratt, 453 F.Appx. 202, (3d Cir. 2011); ...