     Case: 12-30623       Document: 00512095549         Page: 1     Date Filed: 12/27/2012




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

                                                                            FILED
                                                                        December 27, 2012
                                     No. 12-30623
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DWAYNE T. WICKER,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:08-CR-108-8


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Dwayne T. Wicker appeals the denial of his motion under 18 U.S.C.
§ 3582(c)(2) seeking a reduction of the sentence that he received in 2010 after a
conviction for drug conspiracy involving crack and powder cocaine and for
unlawfully using communication facilities. Wicker’s conviction subjected him to
a 120-month mandatory minimum prison sentence, see 21 U.S.C. § 841(b)(1)(A),
and his original advisory guidelines sentencing range was 120 to 150 months of
imprisonment. He received a 97-month prison term after the district court

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30623    Document: 00512095549     Page: 2   Date Filed: 12/27/2012

                                 No. 12-30623

granted the Government’s motion under U.S.S.G. § 5K1.1 based on Wicker’s
substantial assistance. After Wicker was sentenced, the Sentencing Commission
amended the guideline used to calculate sentences for crack cocaine offenses and
made the amendment retroactive to defendants sentenced under earlier versions
of the guideline.
      A defendant is ineligible for a sentence reduction if the relevant
amendment to the Guidelines “does not have the effect of lowering the
defendant’s applicable guideline range because of the operation of another
guideline or statutory provision (e.g., a statutory mandatory minimum term of
imprisonment).” U.S.S.G. § 1B1.10, p.s., comment. (n.1(A)). Wicker’s original
sentencing range encompassed the 120-month statutory minimum prison
sentence. Because his sentence was based on the statutory minimum, he is
ineligible for a sentence reduction, notwithstanding any departure below the
statutory minimum sentence he received during his original sentencing
proceeding. See United States v. Carter, 595 F.3d 575, 577-81 (5th Cir. 2010).
      The judgment of the district court is AFFIRMED.




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