                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-6289


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DELVIN ROE, a/k/a D-Roe,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:07-cr-01014-JFA-4)


Submitted:   June 5, 2012                 Decided:   June 12, 2012


Before GREGORY, SHEDD, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Delvin Roe, Appellant Pro Se.   Stanley Duane Ragsdale, Jane
Barrett Taylor, Assistant United States Attorneys, Columbia,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Delvin Roe appeals the district court’s order denying

his motion for a reduction of sentence pursuant to 18 U.S.C.

§ 3582(c)(2) (2006).           We review a district court’s ruling on a

18    U.S.C.     § 3582(c)(2)        motion       for    an     abuse       of    discretion.

United States v. Stewart, 595 F.3d 197, 200 (4th Cir. 2010).                                   We

affirm.

            In       2009,    Roe    pleaded       guilty,       pursuant         to    a    plea

agreement,      to    one    count    of   participating          in    a    conspiracy        to

possess with intent to distribute fifty or more grams of cocaine

base and five or more kilograms of cocaine, in violation of 21

U.S.C.A. §§ 841(a)(1), (b)(1)(A), 846 (West 2006 & Supp. 2011).

Roe’s    advisory      Guidelines      range       would      have     been       188   to     235

months    but    for    the    statutory          mandatory      minimum         sentence      of

twenty years.         Thus, Roe’s Guidelines range was 240 months.                              On

the    Government’s         motion,    the    district          court       granted      Roe    a

substantial       assistance         departure          under     the       United          States

Sentencing       Commission’s         Guidelines         Manual        (“USSG”)         § 5K1.1

(2008) and sentenced Roe to 151 months in prison.

            Roe’s 18 U.S.C. § 3582(c)(2) motion sought a sentence

reduction based on Amendment 750 to the Guidelines.                                Guidelines

Amendment 750 revised the offense levels applicable to certain

cocaine base quantities under USSG § 2D1.1(c).                                   The district

court found that Amendment 750 did not affect Roe because Roe’s

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Guidelines       calculation        was     made       based        on     the     twenty-year

mandatory minimum sentence.

            On    appeal,     Roe    contends          that    he    is    eligible       for    a

sentence reduction because he was sentenced below the statutory

minimum based on a substantial assistance departure.                                   Section

3582(c)(2) grants sentencing courts “the power to reduce the

sentence    of    a    defendant     who     has       been    sentenced         based     on    a

Sentencing Guidelines range that has been subsequently lowered

by the Sentencing Commission.”                   United States v. Fennell, 592

F.3d 506, 509 (4th Cir. 2010).                    “Where a defendant’s sentence

was within the guideline range applicable at the time of the

original sentencing, 18 U.S.C. § 3582(c)(2) precludes a downward

departure below the amended guideline range,” but “where the

original    sentence        falls    below       the    original          guideline       range,

§ 3582(c)(2) does not preclude a downward departure below the

amended guideline range.”             Id.    Where a defendant was originally

sentenced below the Guidelines range, the Guidelines call for a

§ 3582(c)(2)      reduction         that    is     “comparably             less”    than     the

amended Guidelines range.                Fennell, 592 F.3d at 509-10 (citing

USSG § 1B1.10(b)(2)(B), p.s.).

            But       for   the   mandatory        minimum,         Amendment       750    would

have lowered Roe’s Guidelines range.                     However, Roe cannot escape

the   reality     that      his   Guidelines           range    was       not    affected       by

Amendment    750       because      of     the     mandatory             minimum    sentence.

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Moreover, the record reflects that the sentencing court based

its substantial assistance departure on the 240-month Guidelines

range, not on the lower range calculated via USSG § 2D1.1(c).

Because Amendment 750 had no effect on either Roe’s Guidelines

range or on the extent of the departure from that range, we find

no error in the district court’s denial of Roe’s § 3582(c)(2)

motion.

           Accordingly, we affirm the district court’s order.       We

dispense   with   oral   argument   because   the   facts   and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                              AFFIRMED




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