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

                                                FILED
                                                                 August 21, 2009
                                 No. 08-50908
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

LAMONT E KEITH,

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 5:98-CR-81-ALL


Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
      Lamont E. Keith, federal prisoner # 86855-080, was convicted in 1999 by
a jury of possession of cocaine base (crack) with intent to distribute in violation
of 21 U.S.C. § 841. United States v. Keith, 230 F.3d 784, 785 (5th Cir. 2000).
Based on the sentencing judge’s determination of drug quantity, and because he
had a prior felony drug conviction, the court sentenced him to the mandatory
minimum term provided by § 841(b)(1)(A). We rejected on direct appeal Keith’s



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                 No. 08-50908

argument that the imposition of a mandatory minimum based on judicial
factfinding violated the Sixth Amendment rule announced in Apprendi v. New
Jersey, 530 U.S. 466 (2000). See Keith, 230 F.3d at 786-87.
      Seeking to take advantage of the Sentencing Commission’s recent
reductions in the offense levels for crack cocaine offenses, Keith filed a motion
pursuant to 18 U.S.C. § 3582(c)(2). The district court denied the motion on the
basis that it lacked authority to grant a reduction below the mandatory
minimum of 20 years.
      Keith appeals, arguing that the mandatory minimum does not apply in
light of Apprendi.   According to Keith, drug quantity under § 841(b) is an
element for purposes of establishing both the minimum and maximum sentences
set out in § 841(b)(1)(A)-(C), and any fact that increases the maximum sentence
necessarily increases the minimum sentence. Thus, he contends, Apprendi
requires that such facts be alleged in the indictment and either admitted by the
defendant or found by a jury, and the district court had authority to reduce his
sentence.
      We are bound to follow our prior decision in Keith absent an intervening
contrary decision by the Supreme Court or this court en banc. United States v.
Short, 181 F.3d 620, 624 (5th Cir. 1999). We find no binding authority that
overrules or otherwise abrogates the holding in Keith. The judgment of the
district court is AFFIRMED.




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