                                                                                 F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                  SEP 18 2003
                                    TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                            No. 03-2104
 ARMANDO MARTINEZ-ANAYA,                            (D.C. No. CIV-03-256 LH/LFG)
                                                           (D. New Mexico)
           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before KELLY, BRISCOE, and LUCERO, Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

       Defendant Armando Martinez-Anaya, a federal prisoner appearing pro se, appeals

the district court’s denial of his motion for sentence modification filed pursuant to 18

U.S.C. § 3582(c)(2). We affirm.


       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       Defendant pled guilty to conspiracy to possess with intent to distribute five

kilograms or more of a mixture or substance containing a detectable amount of cocaine,

in violation of 21 U.S.C. § 846, and possession with intent to 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) and (b)(1)(A). He was sentenced to a 120-month minimum

mandatory term of imprisonment. In his § 3582(c)(2) motion, defendant argued the

sentencing range applicable to his convictions had been lowered retroactively by

Amendment 640 to the Guidelines and that his sentence should be reduced accordingly.

See U.S.S.G. § 2D1.1(a)(3). The district court concluded that defendant was not entitled

to relief because he was given the minimum statutory sentence and therefore was not

eligible for a discretionary reduction under § 3582(c)(2).

       A district court may reduce a defendant’s term of imprisonment pursuant to

§ 3582(c)(2) when the applicable sentencing range is lowered by the Sentencing

Commission after the defendant is sentenced. However, defendant’s sentence was

controlled by the applicable statutory mandatory minimum. He was sentenced to the

statutory mandatory minimum of 120 months, a term of imprisonment that must be

imposed when a defendant is convicted of possession with intent to distribute five

kilograms or more of a mixture or substance containing a detectable amount of cocaine.

See 21 U.S.C. § 841(b)(1)(A)(ii); see also U.S.S.G. § 5G1.1(b) (“Where a statutorily

required minimum sentence is greater than the maximum of the applicable guideline


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range, the statutorily required minimum sentence shall be the guideline sentence.”).

Amendment 640 did not amend § 841(b)(1)(A)(ii). The district court was correct in

concluding that defendant was not eligible for a reduction of sentence under § 3582(c)(2).

See United States v. Smartt, 129 F.3d 539, 542 (10th Cir. 1997) (concluding defendant

not entitled to reduction in sentence pursuant to Amendment 516 because original

sentence was statutory minimum term of 60 months).1

       AFFIRMED.

                                                 Entered for the Court

                                                 Mary Beck Briscoe
                                                 Circuit Judge




       1
         In his reply brief, defendant requests application of the safety valve provision
found in U.S.S.G. § 5C1.2. This issue was not raised before the district court and will not
be considered. See United States v. Arzaga, 9 F.3d 91, 94 (10th Cir. 1993).

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