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

                                                 FILED
                                                                           March 11, 2009
                                     No. 08-20450
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

REGINALD WAYNE YAUMAN

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 4:03-CR-158-ALL


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Reginald Wayne Yauman, federal prisoner # 16025-179, pleaded guilty to
possession with intent to distribute 50 grams or more of cocaine base (crack
cocaine) and using and carrying a firearm during and in relation to a drug
trafficking crime.      The district court sentenced Yauman to 135 months of
imprisonment on the crack cocaine count and a mandatory, consecutive 60-
month sentence on the firearms count. Following the enactment of Amendment
706 to the Sentencing Guidelines, which effectively reduced the base offense

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-20450

level for cases involving crack cocaine by two levels, Yauman moved to reduce
his sentence pursuant to 18 U.S.C. § 3582(c)(2). The district court granted
Yauman’s motion and reduced his sentence by 75 months.                  The court
subsequently issued a sua sponte order that amended the sentence reduction to
15 months. The judgment reflects that the sentence consists of 120 months,
which is the statutory minimum, on the crack cocaine count, see 21 U.S.C.
§ 841(b)(1)(A), and a consecutive 60-month sentence on the firearms count.
      Yauman now appeals the district court’s denial of his motion for
reconsideration of the amended order reducing his sentence on the drug charge
by 15 months. He argues that the district court erred by denying his motion
because the statutory minimum sentence on the drug count does not adequately
take into account the sentencing factors set forth in 18 U.S.C. § 3553(a). The
Government has filed a motion to dismiss, for summary affirmance, or,
alternatively, for an extension of time within which to file a brief.
      The district court could not have imposed a guidelines sentence that was
lower than the statutorily mandated minimum penalty. See United States v.
Gomez-Herrera, 523 F.3d 554, 559 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008).
Yauman has not shown that he may be sentenced below the statutory minimum
sentence. See United States v. Harper, 527 F.3d 396, 411 (5th Cir.), cert. denied,
129 S. Ct. 212 (2008).
      Accordingly, the Government’s motion for summary affirmance is
GRANTED, the motions to dismiss and for an extension of time are DENIED,
and the judgment of the district court is AFFIRMED.




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