USA v. Freeman

Filing

UNPUBLISHED OPINION FILED. [08-10271 Affirmed ] Judge: JES , Judge: JLD , Judge: EBC Mandate pull date is 11/16/2010; denying letter to file supplemental briefs filed by Appellant Mr. Marcus Leland Freeman [6056999-3]; denying as moot letter to appoint counsel filed by Appellant Mr. Marcus Leland Freeman [6056999-4] [08-10271]

USA v. Freeman

Case: 08-10271 Document: 00511274143 Page: 1 Date Filed: 10/26/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-10271 C o n fe r e n c e Calendar October 26, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. M A R C U S LELAND FREEMAN, also known as Big Mark, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 4:96-CR-68-8

B e fo r e SMITH, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* M a r c u s Leland Freeman, federal prisoner # 29129-077, appeals from the d is t r ic t court's denial of his motion for a reduction in his sentence pursuant to 1 8 U.S.C. § 3582(c)(2). Freeman also moves for leave to file supplemental briefs a n d for appointment of counsel on appeal; those motions are denied. O n appeal, Freeman contends that the district court erred by failing to r e c a lc u la t e the amount of crack cocaine attributable to him. He also argues that B o o k e r v. United States, 543 U.S. 220 (2005), and Kimbrough v. United States,
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 08-10271 Document: 00511274143 Page: 2 Date Filed: 10/26/2010 No. 08-10271 5 5 2 U.S. 85 (2007), should apply in § 3582(c)(2) proceedings, allowing district c o u r ts to impose sentences lower than the two-level adjustment contemplated b y the crack cocaine guidelines amendments. W e review the district court's decision for abuse of discretion. United S ta te s v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2 0 1 0 ). District courts are limited to the reduction in a sentence allowed by the t w o -le v e l decrease in a defendant's offense level; they may not depart d o w n w a r d ly from the resulting offense level. United States v. Doublin, 572 F.3d 2 3 5 , 236 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009); see also Dillon v. United S ta te s , 130 S. Ct. 2683, 2691-94 (2010) (holding that Booker does not apply to § 3582(c)(2) proceedings). Moreover, "[a] § 3582(c)(2) motion is not a second o p p o r t u n it y to present mitigating factors to the judge, nor is it a challenge to the a p p r o p r ia te n e s s of the original sentence." United States v. Whitebird, 55 F.3d 1 0 0 7 , 1011 (5th Cir. 1995). The district court thus did not abuse its discretion b y declining to recalculate Freeman's drug quantity. M o r e o v e r , because Freeman was sentenced to a mandatory term of life im p r is o n m e n t , see United States v. Freeman, 164 F.3d 243, 251 (5th Cir. 1999), t h e crack cocaine guidelines amendments did not affect his sentencing range. See United States v. Pardue, 36 F.3d 429, 431 (5th Cir. 1994). Freeman was in e lig ib le for an adjustment pursuant to § 3582(c)(2) as a matter of law. F r e e m a n contends that the district court should have ordered the p r e p a r a t io n of a new presentence report and a new sentencing hearing. He also a r g u e s that the district court erred by failing to appoint counsel to represent him i n his § 3582(c)(2) proceeding, and he requests that counsel be appointed to a s s is t him on remand. B e c a u s e Freeman received a mandatory life sentence, he cannot d e m o n s t r a t e that the district court abused its discretion by denying a hearing t o consider his challenges to the drug quantity determination or otherwise r e fu s in g to hold an evidentiary hearing on the § 3582(c)(2) motion. 2 See

Case: 08-10271 Document: 00511274143 Page: 3 Date Filed: 10/26/2010 No. 08-10271 W h ite b ir d , 55 F.3d at 1011. Moreover, Freeman was not entitled to the

a p p o in t m e n t of counsel in his § 3582(c)(2) proceeding. See id. Because no r e m a n d is necessary, Freeman's request for appointment of counsel to represent h im on remand is denied as moot. A F F I R M E D . MOTIONS DENIED.

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