     Case: 13-40915      Document: 00512809165         Page: 1    Date Filed: 10/21/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-40915
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         October 21, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

RUDY GARCIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:09-CR-478-1


Before CLEMENT, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       Rudy Garcia, federal prisoner # 43334-279, appeals the denial of his
motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). Garcia was
convicted of conspiracy to possess with intent to distribute more than 50 grams
of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and was
sentenced to the statutory minimum of 120 months of imprisonment.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40915    Document: 00512809165     Page: 2   Date Filed: 10/21/2014


                                 No. 13-40915

      Garcia’s § 3582(c)(2) motion was based on the Fair Sentencing Act of
2010 (FSA) and the corresponding amendments to the Sentencing Guidelines.
Because Garcia was sentenced on November 17, 2009, before the FSA’s
effective date of August 3, 2010, the FSA is not retroactively applicable to him.
See Dorsey v. United States, 132 S. Ct. 2321, 2335-36 (2012); United States v.
Kelly, 716 F.3d 180, 180-82 (5th Cir.), cert. denied, 134 S. Ct. 439 (2013).
Therefore, he remains subject to the pre-FSA statutory minimum sentence of
120 months and is thus ineligible for a sentence reduction. See § 3582(c)(2);
U.S.SG. § 1B1.10(a)(2)(B) & cmt. n.1(A). Accordingly, the district court did not
abuse its discretion in denying Garcia’s motion. See United States v. Evans,
587 F.3d 667, 672 (5th Cir. 2009).
      The district court’s judgment is AFFIRMED.          Garcia’s incorporated
motion to appoint counsel is DENIED.




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