     Case: 12-30356     Document: 00512041600         Page: 1     Date Filed: 11/02/2012




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

                                                                            FILED
                                                                         November 2, 2012
                                     No. 12-30356
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

REGINALD D. ALLEN, also known as Mack,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:08-CR-108-7


Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
        Reginald D. Allen appeals the denial of his 18 U.S.C. § 3582(c)(2) motion
for reduction of his sentence imposed in November 2009. For that sentence, the
calculated advisory Guidelines sentencing range was 120 to 150 months, with
an applicable 120-month statutory minimum pursuant to 21 U.S.C. § 841(b)(1)(A)
(distribution or possession, with intent to distribute, at least one kilogram of
cocaine, or at least 50 grams of cocaine base). Allen received a 105-month
sentence, however, after the district court granted the Government’s motion for

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30356    Document: 00512041600    Page: 2   Date Filed: 11/02/2012

                                 No. 12-30356

a departure under 18 U.S.C. § 3553(e) and Guideline § 5K1.1 (substantial
assistance).
      Allen’s § 3582(c)(2) motion asserted his eligibility for an additional
sentence reduction based on Guidelines Amendment 750, which in 2011 modified
the advisory Guidelines sentencing ranges for crack-cocaine offenses to conform
with the Fair Sentencing Act enacted in 2010.
      Denial of a § 3582(c)(2) motion for a sentence reduction is reviewed for
abuse of discretion. United States v. Henderson, 636 F.3d 713, 717 (5th Cir.
2011). A district court abuses its discretion when its decision is based on an
error of law. United States v. Smith, 417 F.3d 483, 486-87 (5th Cir. 2005).
      Although Allen’s advisory Guidelines sentencing range would have been
84 to 105 months if sentenced after Amendment 750, he remains subject to 21
U.S.C. § 841(b)(1)(A)’s statutory ten-year minimum for conspiring to distribute
or possess, with intent to distribute, more than one kilogram of cocaine.
      Because Allen remains subject to a valid statutory minimum sentence, he
is ineligible for a sentence reduction under § 3582(c)(2) and Guideline § 1B1.10
(imprisonment term reduction after Guideline amended). E.g., United States v.
Carter, 595 F.3d 575 (5th Cir. 2010) (§ 3553 provides sole statutory bases for
reduction of statutory minimum sentence).        His ineligibility for relief is
unaffected by the above-described downward departure. Id.; cf. United States v.
Scott, 379 F. App’x 410, 411 (5th Cir. 2010) (unpublished) (defendant ineligible
for post-amendment sentence reduction despite downward departure from
statutory-minimum sentence unaffected by that amendment).
      AFFIRMED.




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