United States v. Reece ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 15, 2008
No. 08-20116
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
VICTOR LAPORTER REECE
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:99-CR-7-ALL
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Victor Laporter Reece, federal prisoner # 83295-079, is appealing the
district court’s denial of his motion to reduce his sentence pursuant to 18 U.S.C.
§ 3582(c)(2). Reece was convicted following a guilty plea to possession with
intent to distribute 50 grams or more of cocaine base (crack). He was sentenced,
pursuant to 21 U.S.C. § 851(a)(1), to an enhanced sentence of 240 months.
Reece argues that the district court erred in not reducing his sentence
based on Amendment 706, which decreased by two-levels the base offense level
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 08-20116
for crack cocaine offenses. He contends that in light of United States v. Booker,
543 U.S. 220 (2005) and Kimbrough v. United States, 128 S. Ct. 558 (2007), the
district court had the discretion under the advisory Guidelines to reduce his
sentence pursuant to the amendment and to depart even below the sentencing
guidelines range resulting from the amendment.
The Government filed a motion for summary affirmance, arguing that
Reece was sentenced to the mandatory minimum statutory penalty and that the
amendment could not affect Reece’s sentence.
Pursuant to § 3582(c)(2), a defendant may have his sentence modified if
he was sentenced to a term of imprisonment based upon a sentencing range that
subsequently was lowered by the Sentencing Commission. § 3582(c)(2). Section
3582(c)(2) applies only to retroactive guidelines amendments, as set forth in the
guidelines policy statement; § 1B1.10(a). See United States v. Shaw, 30 F.3d 26,
28-29 (5th Cir. 1994). This court reviews a district court’s refusal to lower a
defendant’s sentence under § 3582(c)(2) for abuse of discretion. Id. at 28.
Effective November 1, 2007, the United States Sentencing Commission
adopted Amendment 706, which modified the Guidelines ranges applicable to
crack cocaine offenses to reduce the disparity between crack cocaine and powder
cocaine sentences. United States v. Burns, 526 F.3d 852, 861 (5th Cir. 2008). In
general, the effect of Amendment 706 is to decrease by two levels the base
offense levels for crack cocaine offenses. See U.S.S.G. § 2D1.1 (2007); U.S.S.G.
Supp. to App’x C, Amend. 706. Amendment 706 has been made retroactive
effective March 3, 2008. Burns, 526 F.3d at 861; § 1B1.10(c).
However, Reece’s sentence cannot be reduced based on the amendment
because he received the mandatory minimum statutory penalty. U.S.S.G.
§ 1B1.10, comment. (n.1(A)); see Kimbrough, 128 S. Ct. at 574; United States v.
Gomez-Herrera, 523 F.3d 554, 559 (5th Cir. 2008). Because Reece had a prior
felony drug conviction and the Government gave notice that it was seeking an
enhanced penalty, Reece was subject, by statute, to the mandatory minimum
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No. 08-20116
penalty of 20 years of imprisonment. 21 U.S.C. §§ 841(b)(1)((A), 851. A
mandatory minimum statutory penalty overrides the retroactive application of
a new guideline. See United States v. Pardue, 36 F.3d 429, 431 (5th Cir. 1994).
Thus, the district court could not impose a sentence below the mandatory
minimum sentence of 20 years. See United States v. Whitebird, 55 F.3d 1007,
1010 (5th Cir. 1995).
To the extent that Reece contends that he is entitled to a modification of
his sentence pursuant to § 3582(c)(2) under Booker and Kimbrough, his
argument is unavailing because Booker does not alter the rule that a district
court cannot depart below a statutory minimum sentence in the absence of a
motion by the Government for a reduced sentence based on the defendant’s
substantial assistance or unless the defendant meets the criteria of the safety
valve provision, 18 U.S.C. § 3553(f). See United States v. Harper, 527 F.3d 396,
411 (5th Cir.), petition for cert. filed, (U.S. June 24, 2008) (No. 08-5037). Reece
has not asserted that he falls under either exception.
The district court did not abuse its discretion in denying Reece’s motion
for a reduction of sentence. Shaw, 30 F.3d at 28. The Government’s motion for
summary affirmance is GRANTED, and its alternative motion for an extension
of time to file a brief is DENIED.
AFFIRMED.
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