     Case: 19-20343      Document: 00515352027         Page: 1    Date Filed: 03/19/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                    No. 19-20343                              FILED
                                  Summary Calendar                       March 19, 2020
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MILTON EARL CARBE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:01-CR-337-1


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Milton Earl Carbe, federal prisoner # 66325-079, appeals the district
court’s denial of his motion for a sentence reduction under Section 404 of the
First Step Act of 2018 (First Step Act), Pub. L. No. 115-19, 132 Stat. 5194
(2018), which, in relevant part, made Sections 2 and 3 of the Fair Sentencing
Act of 2010 (Fair Sentencing Act), Pub. L. No. 111-220, 124 Stat. 2372 (2010),
retroactively applicable to certain covered offenses. He argues that the district


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 19-20343

court erred by: (1) treating his motion as arising under 18 U.S.C. § 3582(c)(2)
rather than § 3582(c)(1)(B); (2) adopting the Government’s alteration of the
sentencing court’s findings in violation of U.S.S.G. § 1B1.10(b)(1); (3) failing to
consider his post-conviction rehabilitation and the applicable 18 U.S.C.
§ 3553(a) factors; and (4) finding that he was not eligible for a reduction under
the First Step Act, which he claims made both the Fair Sentencing Act and
Amendment 750 to the Sentencing Guidelines retroactive. According to Carbe,
the superseding indictment was ambiguous as to the type of cocaine for which
he was charged, and the record was replete with references to his distribution
of cocaine base. We review Carbe’s eligibility for relief under Section 404 of
the First Step Act de novo. See United States v. Jackson, ___ F.3d ___, No. 19-
20346, 2019 WL 6838017, at *2 & n.2 (5th Cir. Dec. 16, 2019); United States v.
Jones, 596 F.3d 273, 276 (5th Cir. 2010).
      The record reflects that the district court did not impose a sentence for
the “violation of a Federal criminal statute, the statutory penalties for which
were modified by section 2 or 3 of the Fair Sentencing Act.” First Step Act,
§ 404(a), 132 Stat. at 5222; see Fair Sentencing Act, §§ 2-3, 124 Stat. at 2372.
Carbe was charged with and convicted of conspiring to possess with intent to
distribute and distribute five kilograms or more of a mixture or substance
containing a detectable amount of cocaine in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), and 846, and possessing with intent to distribute 500 grams or more
of a mixture or substance containing a detectable amount of cocaine in
violation of § 841(a)(1) and (b)(1)(B). Neither Section 2 nor Section 3 of the
Fair Sentencing Act altered the amount of powder cocaine required to trigger
the statutory penalty ranges. See Dorsey v. United States, 567 U.S. 260, 269
(2012).   Although the record does include several references to Carbe’s
distribution of cocaine base, these references were in relation to his relevant



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                                  No. 19-20343

conduct and did not alter the statutes of conviction. See Jackson, 2019 WL
6838017, at *3 (concluding that a defendant’s eligibility for relief under the
First Step Act is based solely on his statute of conviction). Therefore, Carbe
was not eligible for relief under Section 404 of the First Step Act, and the
district court did not err in denying his motion for a sentence reduction under
that Act. See First Step Act, § 404(a)-(b), 132 Stat. at 5222. The district court’s
judgment is AFFIRMED.




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