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United States Court of Appeals, Fifth CircuitJul 15, 2009
328 Fed. Appx. 969 (5th Cir. 2009)

No. 08-50585 Summary Calendar.

July 15, 2009.

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office Western

District of Texas, San Antonio, TX, for Plaintiff-Appellee.

William Courtney Contee, Seagoville, TX, pro se.

Appeal from the United States District Court for the Western District of Texas, USDC No. 7:06-CR-151-1.

Before DAVIS, GARZA, and PRADO, Circuit Judges.

William Courtney Contee, federal prisoner # 34683-177, pleaded guilty in 2006 to conspiracy to distribute and to possess with the intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. § 846, and he was sentenced to 250 months. He now appeals the reduced 240-month sentence he received following the district court's sua sponte 18 U.S.C. § 3582(c)(2) motion based on the retroactive amendments to the crack cocaine guidelines. The sentence imposed represents the relevant statutory mandatory minimum.

For the first time on appeal, Contee argues that the mandatory minimum strips district courts of the power to consider the sentencing factors of 18 U.S.C. § 3553(a) and is therefore unconstitutional under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). His claim is without merit. A district court cannot impose a sentence lower than the statutory minimum following the grant of a § 3582(c)(2) motion. See Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 574, 169 L.Ed.2d 481 (2007); United States v. Gomez-Herrera, 523 F.3d 554, 559 (5th Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 624, 172 L.Ed.2d 617 (2008). Contee makes no argument that he meets the limited circumstances for a sentence below the statutory minimum. See United States v. Harper, 527 F.3d 396, 411 (5th Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 212, 172 L.Ed.2d 157 (2008). Accordingly, the district court's order imposing the statutory minimum sentence is AFFIRMED.