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

                                                FILED
                                                                 August 18, 2009
                                No. 08-41356
                             Conference Calendar              Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

MICHAEL DALCO,

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                           USDC No. 1:04-CR-154-1


Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Michael Dalco, federal prisoner # 08325-078, pleaded guilty to possession
with the intent to distribute 5 grams or more, but less than 50 grams of cocaine
base. He was sentenced to 121 months of imprisonment. He appeals the district
court’s grant 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 offense levels for crack cocaine. The district



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-41356

court reduced Dalco’s sentence to 120 months, the low end of the amended
guidelines range due to the statutory minimum sentence. We review the district
court’s determination on a § 3582(c)(2) motion for abuse of discretion. United
States v. Shaw, 30 F.3d 26, 28 (5th Cir. 1994).
      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, Dalco has not shown that the district court abused its
discretion in granting his motion and reducing his sentence to 120 months. See
Shaw, 30 F.3d at 28.
      Dalco concedes that there is no authority for the district court to have
imposed a sentence below the statutory minimum, but he seeks to preserve the
issue in the event of a change in the jurisprudence regarding the application of
§ 3582(c)(2) to defendants subject to mandatory minimum sentences.
      The Government’s motion for summary affirmance is GRANTED, the
Government’s motion for an extension of time is DENIED, and the judgment of
the district court is AFFIRMED.




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