     Case: 13-50130      Document: 00512471867         Page: 1    Date Filed: 12/16/2013




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

                                                                                FILED
                                    No. 13-50130                        December 16, 2013
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ARTHUR HOSEA SALAZAR, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:09-CR-87-1


Before JOLLY, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM: *
       Arthur Hosea Salazar, Jr., is serving a 120-month sentence for
possession with intent to distribute five grams or more of crack cocaine. The
sentence was the mandatory minimum sentence, triggered by Salazar’s 1992
conviction for cocaine possession. Salazar appeals the district court’s denial of
his motion for a reduced sentence under 18 U.S.C. § 3582(c)(2).




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50130    Document: 00512471867     Page: 2   Date Filed: 12/16/2013


                                 No. 13-50130

      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence where the sentence is “based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.” § 3582(c)(2); see
United States v. Kelly, 716 F.3d 180, 181 (5th Cir. 2013). Amendment 750 of
the Sentencing Guidelines lowered the base offense level for crack offenses in
accordance with the Fair Sentencing Act of 2010. Id. at 180. However, because
Salazar “was subject to a 10-year mandatory minimum sentence, the district
court [was] not authorized to grant a reduction below that minimum.” Id. at
181. Salazar’s claim for a sentence reduction under § 3582 thus lacks arguable
merit.
      Salazar contends for the first time on appeal that his mandatory
minimum sentence is unlawful in light of Alleyne v. United States, 133 S. Ct.
2151, 2155 (2013), which held that any fact that increases the mandatory
minimum sentence must be found by a jury or admitted by the defendant. He
argues that Alleyne overruled Almendarez-Torres v. United States, 523 U.S.
224, 247 (1998), which recognized that the fact of a prior conviction did not
need to be proved to a jury in order to provide the ground for increasing a
statutory sentence. We need not consider this wholly new contention because
it was not raised in the district court. See Leverette v. Louisville Ladder Co.,
183 F.3d 339, 342 (5th Cir. 1999). Nonetheless, we note that the Supreme
Court in Alleyne declined to revisit Almendarez-Torres. Alleyne, 133 S. Ct. at
2160 n.1. The judgment is AFFIRMED.




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