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

                                                 FILED
                                                                            June 17, 2009
                                     No. 08-50590
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

OLVER ADALI SUAZO-IRIAS, also known as Erick Hernan Martinez

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 1:06-CR-50-ALL


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       In 2006, Olver Adali Suazo-Irias (Suazo) pleaded guilty to possession with
the intent to distribute cocaine powder and five grams or more of cocaine base.
He was sentenced to the statutory minimum sentence of 60 months of
imprisonment. He appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2)
motion for a reduction of sentence, which was based on the United States
Sentencing Commission’s amendments to the Sentencing Guidelines’s base



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50590

offense levels for crack cocaine. We review the denial of a § 3582(c)(2) motion for
abuse of discretion. United States v. Shaw, 30 F.3d 26, 28 (5th Cir. 1994).
      Citing United States v. Booker, 543 U.S. 220 (2005), and Kimbrough v.
United States, 552 U.S. 85 (2007), Suazo argues that the district court abused
its discretion in denying his motion to reduce his sentence because the district
court erroneously believed its authority to reduce his sentence was limited by
U.S.S.G. § 1B1.10. 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 could not have imposed 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). Accordingly, Suazo has not shown that the district court abused its
discretion in denying his motion for a reduction of his sentence. See Shaw, 30
F.3d at 28.
      The Government’s motion for summary affirmance is GRANTED, the
Government’s alternative motion for an extension of time is DISMISSED as
moot, and the judgment of the district court is AFFIRMED.




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