United States v. Arthur Salazar, Jr.

Case: 13-50130 Document: 00512471867 Page: 1 Date Filed: 12/16/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-50130 December 16, 2013
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ARTHUR HOSEA SALAZAR, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:09-CR-87-1
Before JOLLY, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM: *
Arthur Hosea Salazar, Jr., is serving a 120-month sentence for
possession with intent to distribute five grams or more of crack cocaine. The
sentence was the mandatory minimum sentence, triggered by Salazar’s 1992
conviction for cocaine possession. Salazar appeals the district court’s denial of
his motion for a reduced sentence under 18 U.S.C. § 3582(c)(2).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50130 Document: 00512471867 Page: 2 Date Filed: 12/16/2013
No. 13-50130
Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence where the sentence is “based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.” § 3582(c)(2); see
United States v. Kelly, 716 F.3d 180, 181 (5th Cir. 2013). Amendment 750 of
the Sentencing Guidelines lowered the base offense level for crack offenses in
accordance with the Fair Sentencing Act of 2010. Id. at 180. However, because
Salazar “was subject to a 10-year mandatory minimum sentence, the district
court [was] not authorized to grant a reduction below that minimum.” Id. at
181. Salazar’s claim for a sentence reduction under § 3582 thus lacks arguable
merit.
Salazar contends for the first time on appeal that his mandatory
minimum sentence is unlawful in light of Alleyne v. United States, 133 S. Ct.
2151, 2155 (2013), which held that any fact that increases the mandatory
minimum sentence must be found by a jury or admitted by the defendant. He
argues that Alleyne overruled Almendarez-Torres v. United States, 523 U.S.
224, 247 (1998), which recognized that the fact of a prior conviction did not
need to be proved to a jury in order to provide the ground for increasing a
statutory sentence. We need not consider this wholly new contention because
it was not raised in the district court. See Leverette v. Louisville Ladder Co.,
183 F.3d 339, 342 (5th Cir. 1999). Nonetheless, we note that the Supreme
Court in Alleyne declined to revisit Almendarez-Torres. Alleyne, 133 S. Ct. at
2160 n.1. The judgment is AFFIRMED.
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