USA v. Suazo-Irias, et al, No. 08-50590 (5th Cir. 2009)
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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-50590 Summary Calendar June 17, 2009 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. OLVER ADALI SUAZO-IRIAS, also known as Erick Hernan Martinez Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 1:06-CR-50-ALL Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges. PER CURIAM:* In 2006, Olver Adali Suazo-Irias (Suazo) pleaded guilty to possession with the intent to distribute cocaine powder and five grams or more of cocaine base. He was sentenced to the statutory minimum sentence of 60 months of imprisonment. He appeals the district court s denial of his 18 U.S.C. § 3582(c)(2) motion for a reduction of sentence, which was based on the United States Sentencing Commission s amendments to the Sentencing Guidelines s base * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. No. 08-50590 offense levels for crack cocaine. We review the denial of a § 3582(c)(2) motion for abuse of discretion. United States v. Shaw, 30 F.3d 26, 28 (5th Cir. 1994). Citing United States v. Booker, 543 U.S. 220 (2005), and Kimbrough v. United States, 552 U.S. 85 (2007), Suazo argues that the district court abused its discretion in denying his motion to reduce his sentence because the district court erroneously believed its authority to reduce his sentence was limited by U.S.S.G. § 1B1.10. The Government has filed a motion for summary affirmance, or, alternatively, for an extension of time within which to file a brief. The district court could not have imposed a guidelines sentence that was lower than the statutorily mandated minimum penalty. See United States v. Harper, 527 F.3d 396, 411 (5th Cir.), cert. denied, 129 S. Ct. 212 (2008); United States v. Gomez-Herrera, 523 F.3d 554, 559 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). Accordingly, Suazo has not shown that the district court abused its discretion in denying his motion for a reduction of his sentence. See Shaw, 30 F.3d at 28. The Government s motion for summary affirmance is GRANTED, the Government s alternative motion for an extension of time is DISMISSED as moot, and the judgment of the district court is AFFIRMED. 2
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