Case: 12-30356 Document: 00512041600 Page: 1 Date Filed: 11/02/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 2, 2012
No. 12-30356
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
REGINALD D. ALLEN, also known as Mack,
Defendant - Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:08-CR-108-7
Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
Reginald D. Allen appeals the denial of his 18 U.S.C. § 3582(c)(2) motion
for reduction of his sentence imposed in November 2009. For that sentence, the
calculated advisory Guidelines sentencing range was 120 to 150 months, with
an applicable 120-month statutory minimum pursuant to 21 U.S.C. § 841(b)(1)(A)
(distribution or possession, with intent to distribute, at least one kilogram of
cocaine, or at least 50 grams of cocaine base). Allen received a 105-month
sentence, however, after the district court granted the Government’s motion for
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30356 Document: 00512041600 Page: 2 Date Filed: 11/02/2012
No. 12-30356
a departure under 18 U.S.C. § 3553(e) and Guideline § 5K1.1 (substantial
assistance).
Allen’s § 3582(c)(2) motion asserted his eligibility for an additional
sentence reduction based on Guidelines Amendment 750, which in 2011 modified
the advisory Guidelines sentencing ranges for crack-cocaine offenses to conform
with the Fair Sentencing Act enacted in 2010.
Denial of a § 3582(c)(2) motion for a sentence reduction is reviewed for
abuse of discretion. United States v. Henderson, 636 F.3d 713, 717 (5th Cir.
2011). A district court abuses its discretion when its decision is based on an
error of law. United States v. Smith, 417 F.3d 483, 486-87 (5th Cir. 2005).
Although Allen’s advisory Guidelines sentencing range would have been
84 to 105 months if sentenced after Amendment 750, he remains subject to 21
U.S.C. § 841(b)(1)(A)’s statutory ten-year minimum for conspiring to distribute
or possess, with intent to distribute, more than one kilogram of cocaine.
Because Allen remains subject to a valid statutory minimum sentence, he
is ineligible for a sentence reduction under § 3582(c)(2) and Guideline § 1B1.10
(imprisonment term reduction after Guideline amended). E.g., United States v.
Carter, 595 F.3d 575 (5th Cir. 2010) (§ 3553 provides sole statutory bases for
reduction of statutory minimum sentence). His ineligibility for relief is
unaffected by the above-described downward departure. Id.; cf. United States v.
Scott, 379 F. App’x 410, 411 (5th Cir. 2010) (unpublished) (defendant ineligible
for post-amendment sentence reduction despite downward departure from
statutory-minimum sentence unaffected by that amendment).
AFFIRMED.
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