IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40746

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MICHAEL JOSEPH DERROW,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 9:98-CR-6-9

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Michael Joseph Derrow, federal prisoner # 03199-286, appeals the district

court’s denial of his 18 U.S.C. § 3582(c)(2) motion seeking modification of his

480-month sentence for conspiracy to distribute and to possess with the intent

to distribute 50 grams or more of crack cocaine and possession with the intent

to distribute 50 grams or more of crack cocaine. Derrow argues that the district

court abused its discretion in denying his § 3582(c)(2) motion based on the

retroactive effects of Amendment 750 and the Fair Sentencing Act (FSA). He

United States Court of Appeals

Fifth Circuit

F I L E D

June 26, 2013

Lyle W. Cayce

Clerk

* 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. 12-40746

asserts that Amendment 750 and the FSA effectively raised the threshold

amount of crack cocaine necessary to trigger the statutory sentencing range of

10 years to life imprisonment under 21 U.S.C. § 841 to 280 grams and that he

was responsible for only 50 grams of crack cocaine.

Section 3582(c)(2) permits the discretionary modification of a defendant’s

sentence in certain cases in which the sentencing range has been subsequently

lowered by the Sentencing Commission. United States v. Doublin, 572 F.3d 235,

237 (5th Cir. 2009). The district court’s decision whether to reduce a sentence

under § 3582(c)(2) is reviewed for an abuse of discretion, while the court’s

interpretation of the Guidelines is reviewed de novo. United States v. Evans, 587

F.3d 667, 672 (5th Cir. 2009).

Under the amended Guidelines, Derrowwas responsible for the equivalent

of 13,626.38 kilograms of marijuana, which results in a base offense level of 36. 

See U.S.S.G. §2D1.1(c)(2). After Derrow’s four-level increase based on his role

in the offense, his total offense level is calculated at 40. A total offense level of

40, combined with his Category V criminal history score, results in a guidelines

range of 360 months to life imprisonment. See U.S.S.G. Ch. 5 Pt. A. At the time

of Derrow’s original sentencing, he faced the same guidelines range.

Because Derrow was not eligible for a sentence reduction under

§ 3582(c)(2), the district court did not abuse its discretion in denying Derrow’s

§ 3582(c)(2) motion. See Evans, 587 F.3d at 672. Additionally, contrary to

Derrow’s assertion, the FSA has no applicability to him because he was

sentenced before it took effect. See Dorsey v. United States, 132 S. Ct. 2321,

2335-36 (2012); United States v. Doggins, 633 F.3d 379, 384 (5th Cir. 2011). 

Accordingly, the judgment of the district court is AFFIRMED.

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 Case: 12-40746 Document: 00512287993 Page: 2 Date Filed: 06/26/2013