### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-30852 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. MICHAEL K. WILLIAMS, also known as Spider Mike, Defendant-Appellant

Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:06-CR-50127-2

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * Michael K. Williams appeals the district court’s d e n i a l o f his 18 U.S.C. § 3582(c)(2) motio n t o r educe his sentence based on amendments to the Sentencing Guidelines for c rack cocaine offenses. Because his appeal is foreclosed by United States v . Carter , 5 95 F.3d 575 (5th Cir. 2010), we AFFIRM. BACKGROUND In 2006, Wi l liams pleaded guilty t o conspiracy to possess with i ntent to deliver more than 5 0 grams or more of c rack cocaine in violation of 21 U .S.C. §§ U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D May6, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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841(a)(1) and 846. Williams’ guidelines s entencing range was 121 to 151 months of imprisonment, b ut he was subjec t t o a m andatory minimum term of i m p r isonment of 2 40 months for his prior felony drug conviction. Pr i o r t o sentencing, the Government filed a § 3553(e) motion for a sentencing reduction for his substantial assistance to authorities. The district co urt granted the motion and sentenced Williams to 132 months of imprisonment. In 2008, Williams filed a pro semotion for a reduction of sentence under § 3582(c)(2) based on amendments to the Sentencing Guidelines, which lowered the offense levels for m ost crack cocaine offenses. The di strict court denied the motion on the basis that the court had already reduced his sentence below the statutory minimum. On appeal, w e a f firmed the district c ourt’s judgment, noting that “when a defendant is s ubject to a statutory minimum sentence above the upper e nd of his guideli n e r a nge, even if the district court departs downwardly from that m i n i m u m under a statutory exception, 18 U.S.C. § 3582(c)(2) provides no authority to the district court to later modify the s entence based on amendments t o the guideline range.” United States v. Williams , 373 F. App’x 488, 489 (5th Cir. 2010) (per curiam) (citing U nited States v. C

arter , 595 F.3d 575, 581 (5th Cir. 2010)). In 2010, after the passage of the F air S entencing Ac t ( “ FSA”), Williams again moved f

or a s entencing reduction und e r § 3 553(e). The district court denied the motion, and Williams, through the Federal Public Defender, timely appealed. STANDARD OF REVIEW We review a district court’s decision whether to reduce a sentence under § 3582(c)(2) for abuse of discretion. Unite d S t a tes v. Evans , 587 F.3d 667, 672 (5th Cir. 2009). ANALYSIS Section 3 582(c)(2) permits the discretionary modification o f a defendant’s sentence if he “has b een sentenced to a term of impri s o n m e n t b a s ed on a
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sentencing r ange that has subsequently been lowered by th e Sentencing Commission” and “such a r e d u c t i o n is consistent with applicable policy statements issued by the Sentencing C ommission.” 1 8 U.S.C. § 3582(c)(2). If a defendant is eligible for a sentence modification under § 3582(c)(2), the district court weighs the applicable § 3553(a) f a c t o r s to d ecide whether a reduction “is warranted in whole or in part under the particular circumstances of the case.” Dillon v. United States , 130 S. Ct. 2683, 2692 (2010). Where, as here, a defendant is “subject to a statutory minimum s entence above the upper end o f h i s gu i d elines range, even if the district c o urt departs downwardly from that mi n i m u m under a statutory exception, 1 8 U.S.C. § 3582(c)(2) provides no authority to the di strict court t o l a ter modify the sentence based on a mendments to the guideline r ange.” United States v. Carter , 595 F.3d 575, 581 (5th Cir. 2010); see also United States v. Anderson , 591 F.3d 789, 791 (5th C ir. 2009) (holding that a prisoner sentenced as a career offender similarly was ineligible for a sentence r e duction u nder § 3582(c)(2)). Williams contends that Carter is irreconcilable with Freeman v. United States , 131 S. Ct. 2685, 2692–95 (2011), a case in which a plurality of the Suprem e C ourt concluded that defendants who ente r i nto plea agreements under Rule 11(c)(1)(C) that specify a p articular sentence a r e e l i gible f or relief under § 3582(c)(2). But, as we have explained previously, “Free m a n d i d not address,

ev e n tangentially, either of the factual scenarios presented in Carter or Anderson”; a nd its r easoning does n ot apply to the situation prese n t e d here. United States v. Barber , No. 1 2-30141, 2013 WL 1197919, at *2 (5th C ir. Mar. 25, 2 013) ( aff

i r m i n g district court’s denial of defendant’s motion for s entence reduction on that basis that his s e ntence w as “based on” a statutory mandatory minimum and not on a sentencing range that subsequently has been lowered). CONCLUSION Car t e r remains good law after Freeman , and, a pplied here, renders Williams ineligible for a sentence reduction under § 3582(c)(2). We AFFIRM.
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