     Case: 15-30912      Document: 00513561949         Page: 1    Date Filed: 06/23/2016




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

                                    No. 15-30912                                    FILED
                                  Summary Calendar                              June 23, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MICHAEL ANTHONY NOEL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 6:03-CR-60025-1


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Michael Anthony Noel, federal prisoner # 09495-
035, appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion to
reduce his sentence based on a recent amendment of the Sentencing Guidelines
for drug offenses. We affirm.
       Noel pleaded guilty to possession with intent to distribute more than 50
grams of cocaine base and possession of a firearm in furtherance of a drug


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-30912

trafficking offense. The district court sentenced Noel to a statutorily mandated
life sentence on the drug charge which the court later reduced to 180 months
of imprisonment after the government filed a motion under Federal Rule of
Criminal Procedure 35.
      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence “in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered
by the Sentencing Commission pursuant to 28 U.S.C. 994(o) . . . if such a
reduction is consistent with applicable policy statements issued by the
Sentencing Commission.”       § 3582(c)(2).   In deciding whether to reduce a
sentence under § 3582(c)(2), the district court must first determine whether
the defendant is eligible for a sentence modification. Dillon v. United States,
560 U.S. 817, 826 (2010). If it concludes that the defendant is eligible, the court
must then consider the applicable 18 U.S.C. § 3553(a) factors to decide whether
a reduction “is warranted in whole or in part under the particular
circumstances of the case.” Id. at 827. We review de novo whether the district
court had authority to reduce a sentence under § 3582(c)(2). United States v.
Jones, 596 F.3d 273, 276 (5th Cir. 2010).
      Section 1B1.10 of the Sentencing Guidelines limits the circumstances
under which a defendant is entitled to a § 3582(c)(2) sentence reduction based
on a retroactive amendment to the Guidelines. Only an individual currently
serving a sentence determined by a guidelines sentencing range subsequently
lowered by particular listed amendments is potentially eligible. See U.S.S.G.
§ 1B1.10(a), p.s. Even then, a reduction is not authorized if the amendment
does not have the effect of lowering the defendant’s applicable guideline range
because of the operation of another guideline or statutory provision. § 1B1.10,
p.s., comment. (n.1(A)).



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                                No. 15-30912

      In United States v. Anderson, 591 F.3d 789, 791 (5th Cir. 2009), we held
that the guidelines amendments lowering the offense levels for crack cocaine
offenses did not apply to prisoners sentenced as career offenders. We reasoned
that a career offender’s sentence “did not derive from the amount of crack
cocaine involved in his offense,” and that a career offender “was not sentenced
based on a sentencing range that was subsequently lowered by the Sentencing
Commission.”    Anderson, 591 F.3d at 791 (internal quotation marks and
citation omitted). In United States v. Carter, 595 F.3d 575, 577-81 (5th Cir.
2010), we held that a defendant subject to a statutory minimum term of
imprisonment was ineligible for a sentence reduction under § 3582(c)(2), even
if the district court had departed below the statutory minimum. We affirmed
the district court’s denial of the § 3582(c)(2) motion, holding that when a
defendant is “subject to a statutory minimum sentence above the upper end of
his guidelines range, even if the district court departs downwardly from that
minimum under a statutory exception, 18 U.S.C. § 3582(c)(2) provides no
authority to the district court to later modify the sentence based on
amendments to the guideline range.” Id. at 581.
      Noel argues that in light of the Supreme Court’s decision in Freeman v.
United States, 564 U.S. 522, 530 (2011), we should not follow these precedents.
We reject this contention because Noel has not shown that Freeman either
explicitly or implicitly overrules our prior decisions. See United States v.
Short, 181 F.3d 620, 624 (5th Cir. 1999) (noting that the panel was “bound by
the precedent of previous panels absent an intervening Supreme Court case
explicitly or implicitly overruling that prior precedent[.]”).   The Court in
Freeman did not address, even tangentially, the factual situations presented
in Carter or Anderson or in the instant case. Noel’s contention that Freeman




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                                No. 15-30912

undermines our prior precedent in Carter and Anderson lacks merit in either
law or logic.
      Noel has not established that the district court erred in concluding that
he was ineligible for relief under § 3582(c)(2). See Dillon, 560 U.S. at 826;
Jones, 596 F.3d at 276. Consequently, the judgment of the district court is
AFFIRMED.




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