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

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 s entenced, inter alia , to 240 m o nths’ imprisonment, pursuant to his guilty-plea conviction for conspiracy t o distribute, and possess with intent to distribut e , a t least five kilograms of c o caine and at least 280 grams of cocaine base, in violation of 21 U.S.C. § 8 46. H e 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. 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 May13, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

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. 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: 12-30817 Document: 00512239273 Page: 1 Date Filed: 05/13/2013No. 12-30817

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

a properly-preserved objec t i on to an ultimate sentence is reviewed for reasonabl e n e s s under an abuse-of-discretion standard, the district court must still properly calculate the Guideline-sentencing range for use i n deciding the sentence to impose. G all v . United S t a t e s , 552 U.S. 3 8, 51 (2007). In that respect, for issues preserved in district c o urt, its a pplication of the G u i delines is reviewed de novo ; its factual findings, only for clear e rror. E.g. , U nited 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. Ibarr a - L u n a , 6 2 8 F.3d 712, 714 ( 5th Cir. 2010) (for harmless error, Government m ust show district court would have imposed same sentence for

same reasons in absence of error). Victor’s 240-month sentence w a s the statutory minimum. 21 U.S.C. § 841(b)(1)(A). The advisory Guidelines sentencing range was 3 60 months’ to life imprisonment; the court instead imposed the s tatutory minimum on the Government’s motion, p ursuant to Guideline § 5K1.1, for a below-Guidelines sentence based on Victor’s substantial assistance. The district court lacked authority to i mpose a sentence b elow the statutory m i nimum absent a statutory exception, as discussed infra

. E.g. , United States v. Montes , 6 02 F .3d 381, 390 (5th Cir. 2 0 1 0 )

. An error in calculating the advisory Guidelines sentencing range in s uch circumstances is ha r m less, 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 w ere not harmless b ecause, but for the claimed i nflated drug quantity and advisory G uide l i n e s s entencing range, the Government likely would have moved under 18 U.S.C. § 3553(e) o r Federal Rule of Criminal P rocedure 35 for a sentence below the statutory minimum. The drug
2 Case: 12-30817 Document: 00512239273 Page: 2 Date Filed: 05/13/2013No. 12-30817

quantity and G uidelines r ange are not relevant consider ations in a motion under § 3553(e) or Rule 35(b); under either p rovisi o n , t h e district court, upon the Government’s motion, may sentence or r educe defendant’s sentence bel o w the statutory minimum only in consideration for defendant’s substantial assistance. 18 U .S.C. § 3553(e) (motion prior to sentencing); F E D
. R. C R I M
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. 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.

3 Case: 12-30817 Document: 00512239273 Page: 3 Date Filed: 05/13/2013