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

                                                 FILED
                                                                         December 23, 2009
                                     No. 09-40194
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

OCIE BURNELL MCCUIN, JR.,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                            USDC No. 4:04-CR-106-21


Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
       Ocie Burnell McCuin, Jr., federal prisoner # 09543-062, pleaded guilty to
conspiracy to possess with intent to distribute 50 grams or more of cocaine base
(crack cocaine), in violation of 21 U.S.C. § 846.              He was sentenced to the
statutory minimum 120-month term of imprisonment as well as a five-year term
of supervised release. See 21 U.S.C. § 841(b)(1)(A)(iii). McCuin appeals the
district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a reduction of
sentence, in which he sought a modification of his sentence due to a retroactive

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 09-40194

amendment to the Sentencing Guidelines for crack cocaine offenses.            The
Government has filed a motion for summary affirmance, or, alternatively, for an
extension of time within which to file a brief.
      The district court’s decision whether to reduce a sentence ordinarily is
reviewed for an abuse of discretion, but a district court’s interpretation of the
Guidelines is reviewed de novo. United States v. Doublin, 572 F.3d 235, 237
(2009), cert. denied, 2009 WL 3073270 (Nov. 2, 2009) (No. 09-6657). The district
court lacked the discretion to impose a guidelines sentence that was lower than
the statutorily mandated minimum penalty. See United States v. Harper, 527
F.3d 396, 411 (5th Cir.), cert. denied, 129 S. Ct. 212 (2008); United States v.
Gomez-Herrera, 523 F.3d 554, 559 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008).
McCuin’s argument that the district court had the discretion to reduce his
sentence under § 3582 in light of United States v. Booker, 543 U.S. 220 (2005),
is unavailing because “the concerns at issue in Booker do not apply in an 18
U.S.C. § 3582(c)(2) proceeding.” Doublin, 572 F.3d at 238. McCuin concedes
that there is no authority for the district court to have imposed a sentence below
the statutory minimum, but he seeks to preserve the issue in the event of a
change in the jurisprudence regarding the application of § 3582(c)(2) to
defendants subject to mandatory minimum sentences.
      The Government’s motion for summary affirmance is GRANTED, the
Government’s motion for an extension of time is DENIED as moot, and the
judgment of the district court is AFFIRMED.




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