     Case: 10-40519 Document: 00511439573 Page: 1 Date Filed: 04/08/2011




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

                                                 FILED
                                                                             April 8, 2011
                                     No. 10-40519
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

GABRIEL DEWAYNE ANTOINE,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:09-CR-103-1


Before DeMOSS, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
       Gabriel Dewayne Antoine appeals the 60-month prison sentence imposed
for his guilty plea conviction for possession with intent to distribute 17.48 grams
of crack cocaine in violation of 21 U.S.C. § 841(a)(1).
       Although § 841(b)(1)(B) no longer prescribes a five-year minimum sentence
for offenses involving at least five but fewer than 28 grams of crack cocaine, see
Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372, Antoine did not
benefit from the amendment of the statute because he committed his offense,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40519 Document: 00511439573 Page: 2 Date Filed: 04/08/2011

                                  No. 10-40519

pleaded guilty, and was sentenced before the act’s August 3, 2010 effective date.
See United States v. Doggins, __ F.3d __, 2011 WL 438935, at *4 (5th Cir. Feb.
9, 2011). Accordingly, former § 841(b)(1)(B)’s five-year minimum sentence for
offenses involving at least five grams of crack cocaine applied in his case.
      Antoine argues that the district court should have granted his motions for
downward departure or variance below that mandatory minimum.                   We
ordinarily lack authority to review a district court’s refusal to depart below a
statutory minimum, but we may review de novo a district court’s decision that
it lacked the authority to do so. United States v. James, 468 F.3d 245, 246-47
(5th Cir. 2006). The Government did not move for a downward departure based
on substantial assistance under 18 U.S.C. § 3553(e), and Antoine was ineligible
for a safety valve reduction under § 3553(f) because he had more than one
criminal history point. See § 3553(f)(1). Accordingly, the district court correctly
determined that it lacked the authority to grant Antoine’s request for a
downward departure. United States v. Krumnow, 476 F.3d 294, 297 (5th Cir.
2007). The district court also lacked the authority to grant Antoine’s motion for
a nonguidelines sentence below the mandatory minimum. See United States v.
Farias, 469 F.3d 393, 401 (5th Cir. 2006) (“[W]hatever result the Guidelines
yield, the sentence cannot be less than the mandatory minimum.”); see also
Kimbrough v. United States, 552 U.S. 85, 108 (2007) (stating that district courts
remain constrained by statutory minimum penalties).
      AFFIRMED.




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