UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-50613
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ERIC ALAN GIACOMEL,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(SA-92-CR-223-1)
February 5, 1997
Before WISDOM, KING, and SMITH, Circuit Judges.
PER CURIAM:*
Eric Alan Giacomel appeals the district court’s denial of his
motion for reduction of sentence under 18 U.S.C. § 3582 (c)(2).
Giacomel argues that, because the Government moved for downward
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
departure, the district court abused its discretion in determining
that Giacomel was nonetheless subject to a statutory ten-year
minimum sentence for his offense. Giacomel also argues that the
district court abused its discretion in refusing to apply the newly
amended “safety valve” provisions of 18 U.S.C. §3553(f), and its
implementing guideline §5C1.2, in the context of a motion for
sentence reduction under §3582(c)(2).
We have reviewed the record and the briefs of the parties and
find no abuse of discretion. It is clear that the United States
did not move for nor authorize a downward departure from the
minimum sentence. Under the recent Supreme Court decision in
Melendez v. United States1, the district court had no discretion to
depart downward. In any event, because it is clear from the record
that the district court would have imposed the same sentence
irrespective of the statutory minimum, no remand is necessary.2
Giacomel is not entitled to a reduction in his sentence under
§5C1.2 because Amendment 509, which implemented §5C1.2, was not
designed for retroactive application,3 and, in any event, the
mandatory minimum sentence for a violation of 21 U.S.C. 841
1
116 S.Ct. 2057 (1996).
2
See Williams v. United States, 503 U.S. 193, 201-03
(1992) (Holding that remand is not required [i]f the party
defending the sentence persuades the court of appeals that the
district court would have imposed the same sentence absent the
erroneous factor”).
3
See United States v. Drath, 89 F.3d 216, 217-18 (5th Cir.
1996).
2
overrides any retroactive application of a guideline amendment.4
AFFIRMED.
4
See United States v. Pardue, 36 F.3d 429, 431 (5th Cir.
1994), cert. denied, 115 S.Ct. 1969 (1995).
3