   Case: 12-10229       Document: 00511928082         Page: 1     Date Filed: 07/20/2012




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

                                                                            FILED
                                                                            July 20, 2012
                                     No. 12-10229
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

KELVIN SPENCER,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                 No. 4:06-CR-88-2




Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*


       Kelvin Spencer, federal prisoner # 35466-177, pleaded guilty of conspiracy
to possess with intent to distribute more than fifty grams of crack cocaine. His

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10229   Document: 00511928082      Page: 2   Date Filed: 07/20/2012

                                 No. 12-10229

plea agreement, entered pursuant to Federal Rule of Criminal Procedure 11(c)-
(1)(C), provided that the appropriate term of imprisonment was no more than
300 months. He was sentenced to 180 months based on the agreed sentence and
a government motion under U.S.S.G. § 5K1.1. His sentence was later reduced
to 156 months based on a government motion under Federal Rule of Criminal
Procedure 35.
      Spencer moved for a sentencing reduction under 18 U.S.C. § 3582(c)(2)
based on the Fair Sentencing Act and the retroactive guidelines amendment,
Amendment 750, which changed the drug quantities necessary to trigger manda-
tory minimum sentences for crack and powder cocaine offenses. The district
court determined that Spencer was not eligible for a reduction under § 3582(c)(2)
because his sentence was not based on the guidelines.
      For the first time on appeal, Spencer argues that the rule of lenity should
allow his sentence to be reduced because, he argues, § 1B1.10(b)(2)(B) is ambigu-
ous. He contends that because § 1B1.10(b)(1)(B) does not distinguish between
departures and variances or between sentences that were originally based on
plea agreements and those that were not, the rule of lenity should apply, and he
should be allowed a reduction. Because Spencer could have made the lenity
argument in the district court, our review is for plain error. See United States
v. Evans, 587 F.3d 667, 671 (5th Cir. 2009).
      Spencer has not demonstrated that the district court plainly erred by fail-
ing to apply the rule of lenity to reduce his sentence. The “plea agreement never
stated that the stipulated sentence depended on, or was even connected to, the
applicable sentencing range.” United States v. Williams, 609 F.3d 368, 373 (5th
Cir. 2010). A review of the record demonstrates that Spencer’s sentence was not
based on the crack-cocaine guideline. The judgment is AFFIRMED.




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