United States v. Clarence Callies , 424 F. App'x 266 ( 2011 )

Case: 09-50213 Document: 00511444333 Page: 1 Date Filed: 04/13/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 13, 2011
No. 09-50213
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
CLARENCE CALLIES,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:01-CR-4-1
Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Clarence Callies, federal prisoner # 13001-180, is serving a total term of
240 months of imprisonment for conspiracy to distribute more than 50 grams of
crack cocaine and possession with intent to distribute more than 50 grams of
crack cocaine. He appeals the denial of his 18 U.S.C. § 3582(c)(2) motion,
wherein he sought a reduction of sentence based on the retroactive amendments
to U.S.S.G. § 2D1.1, the Sentencing Guideline for crack cocaine offenses.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-50213 Document: 00511444333 Page: 2 Date Filed: 04/13/2011
No. 09-50213
The government has moved for summary affirmance, arguing that Callies
was not eligible for a sentencing reduction because he was sentenced to the
statutory mandatory minimum. Callies argues this case should be remanded to
the district court so it may resentence him under the provisions of the Fair
Sentencing Act (FSA), which became effective during the pendency of the instant
appeal. See Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372
(2010).
Section 3582(c)(2) permits a district court to reduce a term of
imprisonment when it is based upon a sentencing range that has subsequently
been lowered by an amendment to the Sentencing Guidelines, if such a reduction
is consistent with the policy statements issued by the Sentencing Commission.
See Dillon v. United States, 130 S. Ct. 2683, 2691 (2010). We review a district
court’s denial of a reduction of sentence under Section 3582(c)(2) for an abuse of
discretion, its interpretation of the Sentencing Guidelines de novo, and its
findings of fact for clear error. United States v. Evans, 587 F.3d 667, 672 (5th
Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010).
Callies has not shown that the district court erred in determining that he
was ineligible for a reduction of sentence because he was sentenced to the
statutory mandatory minimum. See United States v. Carter, 595 F.3d 575, 578-
79 (5th Cir. 2010). Callies’ argument that the FSA should be retroactively
applied to his case is without merit. The Federal Savings Clause precludes
retroactive application of the FSA. United States v. Doggins, 633 F.3d 379, 384
(5th Cir. 2011).
The government’s motion for summary affirmance is GRANTED. The
government’s motion for an extension of time to file a brief is DENIED.
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