     Case: 08-30855     Document: 00511016221          Page: 1    Date Filed: 01/29/2010




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

                                                  FILED
                                                                          January 29, 2010
                                     No. 08-30855
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

PERCY FRANKLIN,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:98-CR-207-10


Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
        Percy Franklin, federal prisoner # 01161-748, appeals from the district
court’s order denying him relief pursuant to 18 U.S.C. § 3582(c)(2) and the crack
cocaine amendments to the Sentencing Guidelines. Franklin was convicted of
conspiracy to distribute crack cocaine and powder cocaine.
        Franklin contends that the district court erroneously found that his 20-
year sentence was the minimum mandatory sentence for his offense because, he
argues, the murders committed by the conspiracy were found not reasonably

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-30855   Document: 00511016221 Page: 2        Date Filed: 01/29/2010
                                No. 08-30855

foreseeable to him when he was sentenced. The Government contends that
Franklin waived any entitlement to § 3582(c)(2) relief because the Federal Public
Defender appointed to represent Franklin sat on the committee that determined
Franklin was ineligible for such relief.
      The Government’s waiver argument is unavailing. Moreover, the district
court’s finding that Franklin previously had incurred a felony drug conviction
raised his mandatory minimum sentence to 20 years of imprisonment. See
21 U.S.C. § 841(b)(1)(A)(iii). Because Franklin was sentenced to the minimum
mandatory 20-year term, he was ineligible for an adjustment pursuant to the
crack cocaine guidelines. See U.S.S.G. § 1B1.10, comment. (n.1)).
      AFFIRMED.




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