* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-20116

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

VICTOR LAPORTER REECE

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:99-CR-7-ALL

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

Victor Laporter Reece, federal prisoner # 83295-079, is appealing the

district court’s denial of his motion to reduce his sentence pursuant to 18 U.S.C.

§ 3582(c)(2). Reece was convicted following a guilty plea to possession with

intent to distribute 50 grams or more of cocaine base (crack). He was sentenced,

pursuant to 21 U.S.C. § 851(a)(1), to an enhanced sentence of 240 months.

Reece argues that the district court erred in not reducing his sentence

based on Amendment 706, which decreased by two-levels the base offense level

United States Court of Appeals

Fifth Circuit

F I L E D

October 15, 2008

Charles R. Fulbruge III

Clerk
No. 08-20116

2

for crack cocaine offenses. He contends that in light of United States v. Booker,

543 U.S. 220 (2005) and Kimbrough v. United States, 128 S. Ct. 558 (2007), the

district court had the discretion under the advisory Guidelines to reduce his

sentence pursuant to the amendment and to depart even below the sentencing

guidelines range resulting from the amendment.

The Government filed a motion for summary affirmance, arguing that

Reece was sentenced to the mandatory minimum statutory penalty and that the

amendment could not affect Reece’s sentence.

Pursuant to § 3582(c)(2), a defendant may have his sentence modified if

he was sentenced to a term of imprisonment based upon a sentencing range that

subsequently was lowered by the Sentencing Commission. § 3582(c)(2). Section

3582(c)(2) applies only to retroactive guidelines amendments, as set forth in the

guidelines policy statement; § 1B1.10(a). See United States v. Shaw, 30 F.3d 26,

28-29 (5th Cir. 1994). This court reviews a district court’s refusal to lower a

defendant’s sentence under § 3582(c)(2) for abuse of discretion. Id. at 28.

Effective November 1, 2007, the United States Sentencing Commission

adopted Amendment 706, which modified the Guidelines ranges applicable to

crack cocaine offenses to reduce the disparity between crack cocaine and powder

cocaine sentences. United States v. Burns, 526 F.3d 852, 861 (5th Cir. 2008). In

general, the effect of Amendment 706 is to decrease by two levels the base

offense levels for crack cocaine offenses. See U.S.S.G. § 2D1.1 (2007); U.S.S.G.

Supp. to App’x C, Amend. 706. Amendment 706 has been made retroactive

effective March 3, 2008. Burns, 526 F.3d at 861; § 1B1.10(c).

However, Reece’s sentence cannot be reduced based on the amendment

because he received the mandatory minimum statutory penalty. U.S.S.G.

§ 1B1.10, comment. (n.1(A)); see Kimbrough, 128 S. Ct. at 574; United States v.

Gomez-Herrera, 523 F.3d 554, 559 (5th Cir. 2008). Because Reece had a prior

felony drug conviction and the Government gave notice that it was seeking an

enhanced penalty, Reece was subject, by statute, to the mandatory minimum
No. 08-20116

3

penalty of 20 years of imprisonment. 21 U.S.C. §§ 841(b)(1)((A), 851. A

mandatory minimum statutory penalty overrides the retroactive application of

a new guideline. See United States v. Pardue, 36 F.3d 429, 431 (5th Cir. 1994).

Thus, the district court could not impose a sentence below the mandatory

minimum sentence of 20 years. See United States v. Whitebird, 55 F.3d 1007,

1010 (5th Cir. 1995).

To the extent that Reece contends that he is entitled to a modification of

his sentence pursuant to § 3582(c)(2) under Booker and Kimbrough, his

argument is unavailing because Booker does not alter the rule that a district

court cannot depart below a statutory minimum sentence in the absence of a

motion by the Government for a reduced sentence based on the defendant’s

substantial assistance or unless the defendant meets the criteria of the safety

valve provision, 18 U.S.C. § 3553(f). See United States v. Harper, 527 F.3d 396,

411 (5th Cir.), petition for cert. filed, (U.S. June 24, 2008) (No. 08-5037). Reece

has not asserted that he falls under either exception.

The district court did not abuse its discretion in denying Reece’s motion

for a reduction of sentence. Shaw, 30 F.3d at 28. The Government’s motion for

summary affirmance is GRANTED, and its alternative motion for an extension

of time to file a brief is DENIED.

AFFIRMED.