United States v. Giacomel

Opinion

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-50613

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ERIC ALAN GIACOMEL,

Defendant-Appellant.

Appeal from the United States District Court For the Western District of Texas (SA-92-CR-223-1) February 5, 1997

Before WISDOM, KING, and SMITH, Circuit Judges.

PER CURIAM:*

Eric Alan Giacomel appeals the district court’s denial of his

motion for reduction of sentence under 18 U.S.C. § 3582 (c)(2).

Giacomel argues that, because the Government moved for downward

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. departure, the district court abused its discretion in determining

that Giacomel was nonetheless subject to a statutory ten-year

minimum sentence for his offense. Giacomel also argues that the

district court abused its discretion in refusing to apply the newly

amended “safety valve” provisions of 18 U.S.C. §3553(f), and its

implementing guideline §5C1.2, in the context of a motion for

sentence reduction under §3582(c)(2).

We have reviewed the record and the briefs of the parties and

find no abuse of discretion. It is clear that the United States

did not move for nor authorize a downward departure from the

minimum sentence. Under the recent Supreme Court decision in

Melendez v. United States1, the district court had no discretion to

depart downward. In any event, because it is clear from the record

that the district court would have imposed the same sentence

irrespective of the statutory minimum, no remand is necessary.2

Giacomel is not entitled to a reduction in his sentence under

§5C1.2 because Amendment 509, which implemented §5C1.2, was not

designed for retroactive application,3 and, in any event, the

mandatory minimum sentence for a violation of 21 U.S.C. 841

1 116 S.Ct. 2057 (1996). 2 See Williams v. United States, 503 U.S. 193, 201-03 (1992) (Holding that remand is not required [i]f the party defending the sentence persuades the court of appeals that the district court would have imposed the same sentence absent the erroneous factor”). 3 See United States v. Drath, 89 F.3d 216, 217-18 (5th Cir. 1996).

2 overrides any retroactive application of a guideline amendment.4

AFFIRMED.

4 See United States v. Pardue, 36 F.3d 429, 431 (5th Cir. 1994), cert. denied, 115 S.Ct. 1969 (1995).