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should not be published and is not precedent except under the limited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.
2