Case: 12-30667       Document: 00512322240         Page: 1     Date Filed: 07/26/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 26, 2013
                                     No. 12-30667
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MELVIN LUTCHER, also known as Mel, also known as Big Mel,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:03-CR-338-2


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       Melvin Lutcher, federal prisoner # 21092-034, was convicted of conspiracy
to possess with intent to distribute crack cocaine and powder cocaine and of use
of a communication facility to facilitate the commission of his drug offense. He
was sentenced in 2005 to 293 months of imprisonment on the drug charge and
48 months on the communication facility charge, with the sentences to be served
concurrently. In 2011, he sought relief pursuant to 18 U.S.C. § 3582(c)(2), based
on the Fair Sentencing Act of 2010 (FSA) and the amendments to the Sentencing

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-30667    Document: 00512322240      Page: 2   Date Filed: 07/26/2013

                                 No. 12-30667

Guidelines that were implemented in the wake of the FSA. The district court
granted Lutcher’s motion and reduced the sentence to 240 months of
imprisonment.
      On appeal, Lutcher first argues that he was deprived of due process
because he was not provided with a copy of a supplement to his presentence
report. However, there was no such supplement, and Lutcher’s contention lacks
a basis in fact.
      Next, Lutcher contends that the district court erred by failing to apply the
FSA and the guideline amendments arising from the FSA. He further argues
that his new sentence should have been based on the subsection of the current
21 U.S.C. § 841 applicable to 50 grams of crack cocaine.
      The FSA is inapplicable to Lutcher’s case, as he was sentenced before the
effective date of the FSA. See United States v. Doggins, 

, 384 (5th
Cir. 2011). The pre-FSA version of § 841 remains applicable to Lutcher’s
sentence. Because Lutcher’s sentence was enhanced pursuant to 21 U.S.C.
§ 851, he remains subject to a mandatory minimum sentence of 20 years of
imprisonment. See § 841(b)(1)(A)(iii) (2005). The 20-year mandatory minimum
is higher than the guideline sentencing range the district court calculated based
on the amended guidelines, so the 20-year mandatory minimum became the
guideline sentencing range. U.S.S.G. § 5G1.1(b). The district court could not
have reduced Lutcher’s sentence below 240 months. See United States v.
Doublin, 

, 237 (5th Cir. 2009).
      Lutcher has failed to demonstrate that the district court’s reduction of his
sentence to 240 months was an abuse of discretion. See United States v. Evans,

, 672 (5th Cir. 2009).
      AFFIRMED.




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