     Case: 12-30817       Document: 00512239273         Page: 1     Date Filed: 05/13/2013




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

                                                                            FILED
                                                                           May 13, 2013
                                     No. 12-30817
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

MARTIN VICTOR, JR.,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:09-CR-320-1


Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       Martin Victor, Jr.,was sentenced, inter alia, to 240 months’ imprisonment,
pursuant to his guilty-plea conviction for conspiracy to distribute, and possess
with intent to distribute, at least five kilograms of cocaine and at least 280
grams of cocaine base, in violation of 21 U.S.C. § 846. He challenges his
sentence, contending: the district court should have used a different version of
the Sentencing Guidelines; and it erroneously attributed to him 42 kilograms of
cocaine base in calculating his base offense level.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 12-30817

      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly-preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines is
reviewed de novo; its factual findings, only for clear error. E.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005).
      We need not determine whether the district court erred, or what standard
of review is appropriate, because any errors were harmless. See United States
v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010) (for harmless error,
Government must show district court would have imposed same sentence for
same reasons in absence of error).        Victor’s 240-month sentence was the
statutory minimum.       21 U.S.C. § 841(b)(1)(A).       The advisory Guidelines
sentencing range was 360 months’ to life imprisonment; the court instead
imposed the statutory minimum on the Government’s motion, pursuant to
Guideline § 5K1.1, for a below-Guidelines sentence based on Victor’s substantial
assistance.
      The district court lacked authority to impose a sentence below the
statutory minimum absent a statutory exception, as discussed infra. E.g.,
United States v. Montes, 602 F.3d 381, 390 (5th Cir. 2010).            An error in
calculating the advisory Guidelines sentencing range in such circumstances is
harmless, because the district court could not have imposed a lower sentence.
E.g., United States v. Sandle, 123 F.3d 809, 813 (5th Cir. 1997).
      Victor contends the claimed errors were not harmless because, but for the
claimed inflated drug quantity and advisory Guidelines sentencing range, the
Government likely would have moved under 18 U.S.C. § 3553(e) or Federal Rule
of Criminal Procedure 35 for a sentence below the statutory minimum. The drug

                                         2
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                                 No. 12-30817

quantity and Guidelines range are not relevant considerations in a motion under
§ 3553(e) or Rule 35(b); under either provision, the district court, upon the
Government’s motion, may sentence or reduce defendant’s sentence below the
statutory minimum only in consideration for defendant’s substantial assistance.
18 U.S.C. § 3553(e) (motion prior to sentencing); FED. R. CRIM. P. 35(b) (motion
to reduce sentence within one year after sentencing); see also United States v.
Alvarez, 51 F.3d 36, 39 (5th Cir. 1995).
      AFFIRMED.




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