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

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 d enial 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 di s tribute 50 grams or more of crack cocaine. D errow argues that the district court abused its discretion in denying his § 3582(c)(2) motion based on the retroactive effects of A m e n d ment 750 and the Fair S entencing Act (FSA). He 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 June 26, 2013 Ly l e W . Cay ce 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

. R. 47. 5. 4. Case: 12-40746 Document: 00512287993 Page: 1 Date Filed: 06/26/2013No. 12-40746

asserts that Amendment 7 50 and t he FSA effectively raised the threshold amount of crack cocaine necessary to trigger the statutory sentencing range of 10 years to life imprisonmen t u n d e r 21 U.S.C. § 841 to 280 grams and that he was responsible for only 50 grams of crack cocaine. Section 3 582(c)(2) permits the discretionary modification o f a defendant’s sentence in certain cases i n which the sentencing r ange 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 s entence under § 3582(c)(2) is reviewed for a n abuse of dis c r e t i o n , while the court’s interpretation of the G uidelines is reviewed de novo. United States v. Evans , 587 F.3d 667, 672 (5th Cir. 2009). Under the amended Guidelin e s , D e rr o w w a s r e s p o n s ib l e 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 o ffense, his t otal offense level is calculated at 40. A total offense level of 40, combined with his Category V c riminal history score, results i n a guidelines range of 360 months to life imprisonment. See U.S.S.G. Ch. 5 Pt. A. At t he time of Derrow’s original sentencing, he faced the same guidelines range. B e c a use Derrow w as not eligible for a sentence reduction under § 3582(c)(2), the district court did not abuse i ts discretion in denying D errow’s § 3582(c)(2) motion. See Evans , 587 F.3d at 672. Additionally, contrary to Derrow’s assertion, the FSA has n o applicability to him because he was sentenced before it took effect. See Dorsey v. United S t a t e s , 132 S

. C t. 2321, 2 3 3 5

- 36 (2012); United S tates v. Doggins , 633 F .3d 379, 384 (5th Cir. 201 1 )

. Accordingly, the judgment of the district court is AFFIRMED.

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