USA v. Alegria-Moreno

Filing 920060411

Opinion

United States Court of Appeals Fifth Circuit

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

F I L E D
April 11, 2006 Charles R. Fulbruge III Clerk

No. 04-20886 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CARLOS ALEGRIA-MORENO, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 4:89-CR-394-4 -------------------Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges. PER CURIAM:* Carlos Alegria-Moreno (Alegria), federal prisoner # 51120079, appeals the denial of his 18 U.S.C. § 3582(c) motion to reduce sentence. The district court's ruling is reviewed for an United States v. Pardue, 36 F.3d 429, 430

abuse of discretion. (5th Cir. 1994).

Alegria argues that the district court abused its discretion in denying his motion, asserting that, pursuant to retroactive Amendment 484 to U.S.S.G. § 2D1.1, packing materials must be

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-20886 -2excluded from calculating drug quantities for sentencing purposes. He conclusionally states that the 163 kilograms of

cocaine attributed to him in the PSR included 12.6 kilograms of duct tape and packaging and that, without those wrappings, he would have been held responsible for only 150 kilograms of cocaine, which would have reduced his total offense level and removed the possibility of a life sentence. Even prior to Amendment 484, packaging materials were not to be included when determining the amount of drugs attributable to a defendant for sentencing purposes. See, e.g., Chapman v. Because Alegria could

United States, 500 U.S. 453, 463 (1991).

have raised his argument on direct appeal, it is not cognizable under § 3582(c)(2). (5th Cir. 1994). See United States v. Shaw, 30 F.3d 26, 29

The district court did not abuse its discretion Accordingly, its judgment is

in denying Alegria's motion. AFFIRMED.