                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                                                          F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                               July 20, 2004

                                                                      Charles R. Fulbruge III
                                                                              Clerk
                                No. 03-10945
                              Summary Calendar



                          UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

                                     versus

                             GARY WAYNE MINTER,

                                            Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                  for the Northern District of Texas
                         USDC No. 4:89-CR-35-A
                          --------------------

Before SMITH, BARKSDALE and DENNIS, Circuit Judges.

PER CURIAM:*

     Gary Wayne Minter, who was convicted in November 1990 of

possession     of   phenalacetone          with   intent       to     manufacture

methamphetamine     and    opening   and    maintaining    a    place      for    the

manufacture and distribution of methamphetamine, challenges the

district court’s denial of his second 18 U.S.C. § 3582(c)(2) motion

to reduce sentence.       Minter asserts that the district court abused

its discretion when it denied his motion.             He relies on United

States v. Mueller, 168 F.3d 186 (5th Cir. 1999), to assert that his

     *
        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that this opinion should not be published and is not precedent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. 03-10945
                                      -2-

sentence should be based solely on application of Guidelines

Amendment 484, which was effective in 1993, to the 1988 edition of

the Guidelines.         The Government argues that the law of the case

doctrine precludes this court from considering Minter’s appeal.

Minter argues that the law of the case doctrine does not apply

because the district court’s prior decision is clearly erroneous

and would work a manifest injustice in light of Mueller.

     Minter was originally sentenced to a total of 300 months’

imprisonment. In response to a prior 18 U.S.C. § 3582(c)(2) motion

to reduce sentence, the district court reduced Minter’s sentence to

a term of 262 months’ imprisonment.           This sentence reduction was

made in response to Minter’s argument that Amendment 484, which

modified the application notes to Guidelines § 2D1.1 and excluded

waste   water    from    the   drug   quantity    calculation,   warranted   a

reduction in his sentence.            See Amendment 484, U.S.S.G. App. C

(1993).    The    district     court    reduced   Minter’s   sentence   after

determining that Amendment 484 was retroactively applicable and

that it warranted a reduction in Minter’s sentence.              However, the

district court also analyzed the factors set forth in 18 U.S.C. §

3553(a) and concluded that a sentence within the range of 108-135

months, which was produced by applying Amendment 484 to the 1888

Guidelines, would not comply with 18 U.S.C. § 3553(a)(6), which

directs courts to avoid unwarranted sentencing disparities among

defendants with similar records who have been found guilty of

similar conduct.
                              No. 03-10945
                                   -3-

     Mueller does not indicate that the district court abused its

discretion when it denied Minter’s second 18 U.S.C. § 3582(c)(2)

motion.   See United States v. Allison, 63 F.3d 350, 351 (5th Cir.

1995) (district court’s decision whether to reduce a sentence under

section   18   U.S.C.   §   3582(c)(2)   is   reviewed   for   abuse   of

discretion). We have carefully examined the district court’s prior

decision in light of Mueller. The Mueller panel specifically noted

in its holding in which it vacated the district court’s ruling on

an 18 U.S.C. § 3582(c)(2) motion that it was not implying “that the

district court lacks discretion to consider appropriate factors,

such as those set forth in 18 U.S.C. § 3553(a), in making its

decision whether to reduce Muller’s sentence of imprisonment.”

Mueller, 168 F.3d at 190.    In Minter’s case, unlike in Mueller, the

district court’s opinion on Minter’s initial 18 U.S.C. § 3582(c)(2)

motion indicates that the decision was guided by 18 U.S.C. §

3553(a), most specifically the need to avoid unwarranted sentencing

disparities among defendants with similar records who have been

found guilty of similar conduct.     See 18 U.S.C. § 3553(a)(6).

     Minter has therefore failed to demonstrate that the district

court’s prior decision is clearly erroneous and would work a

manifest injustice.     See Free v. Abbott Labs. Inc., 164 F.3d 270,

272 (5th Cir. 1999) (setting forth exceptions to the law of the

case doctrine). Accordingly, the law of the case doctrine applies.

See United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002).
                          No. 03-10945
                               -4-

     The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief.      In its motion, the Government asks

that an appellee’s brief not be required.    The motion is GRANTED.

The judgment of the district court is AFFIRMED.

     AFFIRMED; MOTION GRANTED.
