United States v. Rudy Garcia

583 F. App'x 336

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 21, 2014
• Docket: 13-40915
• Status: Unpublished

Opinion

PER CURIAM: *

Rudy Garcia, federal prisoner # 43334-279, appeals the denial of his motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). Garcia was convicted of conspiracy to possess with intent to distribute more than 50 grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and was sentenced to the statutory minimum of 120 months of imprisonment.

Garcia’s § 3582(c)(2) motion was based on the Fair Sentencing Act of 2010 (FSA) and the corresponding amendments to the Sentencing Guidelines. Because Garcia was sentenced on November 17, 2009, before the FSA’s effective date of August B, 2010, the FSA is not retroactively applicable to him. See Dorsey v. United States, — U.S. -, 132 S.Ct. 2321, 2335-36, 183 L.Ed.2d 250 (2012); United States v. Kelly, 716 F.3d 180, 180-82 (5th Cir.), cert. denied, — U.S. -, 134 S.Ct. 439, 187 L.Ed.2d 295 (2013). Therefore, he remains subject to the pre-FSA statutory minimum sentence of 120 months and is thus ineligible for a sentence reduction. See § 3582(c)(2); U.S.S.G. § 1B1.10(a)(2)(B) & cmt. n. 1(A). Accordingly, the district court did not abuse its discretion in denying Garcia’s motion. See United States v. Evans, 587 F.3d 667, 672 (5th Cir.2009).

The district court’s judgment is AFFIRMED. Garcia’s incorporated motion to appoint counsel is DENIED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.