     Case: 11-51246       Document: 00512090542         Page: 1     Date Filed: 12/20/2012




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

                                                                            FILED
                                                                        December 20, 2012
                                     No. 11-51246
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DAVID JAMES BROWN,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:07-CR-30-1


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       David James Brown, federal prisoner # 83171-180, is serving a 120-month
sentence for his conviction for conspiracy to possess with intent to distribute 50
grams or more of cocaine base. Brown appeals the district court’s denial of his
18 U.S.C. § 3582(c)(2) motion for a reduction of his sentence based on the
retroactive amendments to U.S.S.G. § 2D1.1, the guideline for crack cocaine
offenses.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51246     Document: 00512090542      Page: 2   Date Filed: 12/20/2012

                                  No. 11-51246

      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence “in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered
by the Sentencing Commission pursuant to 28 U.S.C. 994(o).” § 3582(c)(2); see
United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009). The district court’s
decision whether to reduce a sentence under § 3582(c)(2) is reviewed for an
abuse of discretion, while the court’s interpretation of the Guidelines is reviewed
de novo. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009).
      As the district court determined, Brown was subject to a mandatory 10-
year minimum sentence under former 21 U.S.C. § 841(b)(1)(A). A mandatory
minimum statutory penalty overrides the retroactive application of a new
guideline. See United States v. Pardue, 36 F.3d 429, 431 (5th Cir. 1994).
Regardless of whether § 3582(c)(2) provided the district court with authority to
reduce Brown’s sentence to the 10-year floor, the Government did not file a
motion pursuant to 18 U.S.C. § 3553(e) requesting a sentence below the
mandatory minimum; thus, the district court did not have the authority to
impose a sentence below 10 years. See United States v. Phillips, 382 F.3d 489,
499 (5th Cir. 2004); see also United States v. Krumnow, 476 F.3d 294, 297 (5th
Cir. 2007).
      The Government’s motion for summary affirmance is GRANTED, and the
judgment of the district court is AFFIRMED. The Government’s alternative
motion for an extension of time in which to file a brief is DENIED as
unnecessary.




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