IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-30817

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

MARTIN VICTOR, JR.,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 6:09-CR-320-1

Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.

PER CURIAM:*

Martin Victor, Jr.,was sentenced, inter alia, to 240 months’ imprisonment,

pursuant to his guilty-plea conviction for conspiracy to distribute, and possess

with intent to distribute, at least five kilograms of cocaine and at least 280

grams of cocaine base, in violation of 21 U.S.C. § 846. He challenges his

sentence, contending: the district court should have used a different version of

the Sentencing Guidelines; and it erroneously attributed to him 42 kilograms of

cocaine base in calculating his base offense level.

United States Court of Appeals

Fifth Circuit

F I L E D

May 13, 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. 12-30817

Although post-Booker, the Sentencing Guidelines are advisory only, and

a properly-preserved objection to an ultimate sentence is reviewed for

reasonableness under an abuse-of-discretion standard, the district court must

still properly calculate the Guideline-sentencing range for use in deciding the

sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that

respect, for issues preserved in district court, its application of the Guidelines is

reviewed de novo; its factual findings, only for clear error. E.g., United States v.

Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas,

404 F.3d 355, 359 (5th Cir. 2005). 

We need not determine whether the district court erred, or what standard

of review is appropriate, because any errors were harmless. See United States

v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010) (for harmless error,

Government must show district court would have imposed same sentence for

same reasons in absence of error). Victor’s 240-month sentence was the

statutory minimum. 21 U.S.C. § 841(b)(1)(A). The advisory Guidelines

sentencing range was 360 months’ to life imprisonment; the court instead

imposed the statutory minimum on the Government’s motion, pursuant to

Guideline § 5K1.1, for a below-Guidelines sentence based on Victor’s substantial

assistance. 

The district court lacked authority to impose a sentence below the

statutory minimum absent a statutory exception, as discussed infra. E.g.,

United States v. Montes, 602 F.3d 381, 390 (5th Cir. 2010). An error in

calculating the advisory Guidelines sentencing range in such circumstances is

harmless, because the district court could not have imposed a lower sentence. 

E.g., United States v. Sandle, 123 F.3d 809, 813 (5th Cir. 1997).

Victor contends the claimed errors were not harmless because, but for the

claimed inflated drug quantity and advisory Guidelines sentencing range, the

Government likely would have moved under 18 U.S.C. § 3553(e) or Federal Rule

of Criminal Procedure 35 for a sentence below the statutory minimum. The drug

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No. 12-30817

quantity and Guidelines range are not relevant considerations in a motion under

§ 3553(e) or Rule 35(b); under either provision, the district court, upon the

Government’s motion, may sentence or reduce defendant’s sentence below the

statutory minimum only in consideration for defendant’s substantial assistance. 

18 U.S.C. § 3553(e) (motion prior to sentencing); FED. R. CRIM. P. 35(b) (motion

to reduce sentence within one year after sentencing); see also United States v.

Alvarez, 51 F.3d 36, 39 (5th Cir. 1995).

AFFIRMED.

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