USA v. Thompson

Filing

UNPUBLISHED OPINION FILED. [08-10400 Affirmed ] Judge: PEH , Judge: JES , Judge: ECP Mandate pull date is 01/03/2011; denying motion to appoint counsel filed by Appellant Mr. Christopher Thompson [6647733-2] [08-10400]

USA v. Thompson Case: 08-10400

Document: 00511319780 Page: 1 Date Filed: 12/13/2010

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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 . 08-10400 S u m m a r y Calendar December 13, 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. C H R I S T O P H E R THOMPSON 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. 3:03-CR-382-ALL

B e fo r e HIGGINBOTHAM, SMITH, and PRADO, Circuit Judges. P E R CURIAM:1 C h r is t o p h e r Thompson, federal prisoner # 31221-177, appeals the district c o u r t's denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). Thompson contends he is eligible for a sentence reduction based on Amendment 7 0 6 to the United States Sentencing Guidelines. Amendment 706 lowers T h o m p s o n 's offense level, but it does not lower his recommended sentencing r a n g e . Therefore, we affirm the district court's denial of his § 3582(c)(2) motion.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-10400 Document: 00511319780 Page: 2 Date Filed: 12/13/2010 No. 08-10400 A jury convicted Thompson of four offenses: (1) possession of a firearm as a felon, (2) possession of a firearm within a school zone, (3) possession with in t e n t to distribute fifty or more grams of cocaine base ("crack"), and (4) p o s s e s s io n with intent to distribute fifty or more grams of crack within a school z o n e . At sentencing, the district court determined that Thompson was a career offen d e r . The career-offender provision of the Sentencing Guidelines, § 4B1.1(b), p r o v id e d that Thompson's offense level was 37 unless the otherwise-applicable b a s e offense level was higher. It was--under the crack-cocaine provisions of the G u id e lin e s in effect at the time, §§ 2D1.1 & 2D1.2, Thompson's adjusted offense le v e l was 38. The district court applied the higher offense level of 38 which, c o m b in e d with Thompson's criminal-history score, produced a recommended a s e n te n c in g range of 360 months to life. The district court varied downwardly a n d sentenced Thompson to 324 months in prison.2 T h o m p s o n filed a motion for reduction of sentence pursuant to 18 U .S.C. § 3582(c)(2). "Section 3582(c)(2) permits a district court to reduce a term of im p r is o n m e n t when it is based upon a sentencing range that has subsequently b e e n lowered by an amendment to the Guidelines, if such a reduction is c o n s is t e n t with the policy statements issued by the Sentencing Commission." United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997) (per c u r ia m ). Thompson seeks a reduction in his sentence based on Amendment 706 t o the Sentencing Guidelines. Amendment 706, which the Sentencing

C o m m is s io n made retroactive, reduced the base offense levels for crack-cocaine o ffe n s e s . United States v. Burns, 526 F.3d 852, 861 (5th Cir. 2008). In general, A m e n d m e n t 706 adjusts downward by two levels the base offense level for-crack c o c a in e offenses under § 2D1.1 of the Guidelines. See id.

Thompson also received a sixty-month sentence for one of his firearms offenses and a 120-month sentence for the other one. The district court ordered that Thompson serve those sentences concurrently with the sentence for his crack-cocaine offenses, and Thompson does not challenge either of his firearms sentences on this appeal.

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Case: 08-10400 Document: 00511319780 Page: 3 Date Filed: 12/13/2010 No. 08-10400 T h e district court denied Thompson's motion because it concluded that he w a s sentenced as a career offender and was therefore ineligible for a reduction in his sentence. We review de novo a district court's authority to reduce a s e n te n c e pursuant to § 3582(c)(2), United States v. Jones, 596 F.3d 273, 276 (5th C ir .), cert. denied, __ S. Ct. __, 2010 WL 1848457 (Oct. 4, 2010), and we review fo r an abuse of discretion a district court's discretionary decision to deny a § 3582(c)(2) motion, United States v. Anderson, 591 F.3d 789, 790 n.6 (5th Cir. 2 0 0 9 ). B y its terms, § 3582(c)(2) allows a district court to reduce a defendant's s e n te n c e only if the defendant's "sentencing range" has subsequently been lo w e r e d by an amendment to the Guidelines. Without more, the fact that a d e fe n d a n t 's base or adjusted offense level has been reduced is not enough to e n tit le that defendant to a sentence reduction under § 3582(c)(2). If the

d e fe n d a n t 's recommended sentencing range remains the same even though his o ffe n s e level has been lowered, he is not eligible for resentencing. See U.S. S ENTENCING GUIDELINES MANUAL § 1B.1.10 cmt. n.1 (2010). Thompson thus finds himself ineligible for resentencing. Thompson's a d ju s te d offense level of 38 under § 2D1.1 was subject to a two-level reduction u n d e r Amendment 706. See Jones, 596 F.3d at 276-77. But Thompson was s e n te n c e d as a career offender under § 4B1.1. Thompson's adjusted offense level w a s determined under § 2D1.1 instead of § 4B1.1 only because the adjusted o ffe n s e level under § 2D1.1 was higher. See U.S. SENTENCING GUIDELINES M ANUAL § 4B1.1(b) (2010). Amendment 706 did not change the fact that

§ 4B1.1(b)(A) sets Thompson's offense level at 37. Consequently, the newly lo w e r e d offense level of 36 under § 2D1.1 does not apply to Thompson because it is not greater than the offense level of 37 that is otherwise applicable under § 4B1.1. See id. T h e effect of Amendment 706 was to reduce Thompson's offense level not fr o m 38 to 36, but from 38 to 37. For a defendant such as Thompson whose 3

Case: 08-10400 Document: 00511319780 Page: 4 Date Filed: 12/13/2010 No. 08-10400 c r im in a l- h i s t o r y category is VI, the recommended sentencing range for an o ffe n s e level of 37 is the same as it is for an offense level of 38. See id. ch. 5, pt. A . (Sentencing Table). Either way, the Guidelines recommends a term of

im p r is o n m e n t of 360 months to life. B e c a u s e Thompson's Guidelines imprisonment range has not been l o w e r e d , the district court did not err in determining that it lacked authority u n d e r § 3582(c)(2) to lower Thompson's sentence, and its denial of Thompson's m o t io n was not an abuse of discretion. We affirm the district court's order d e n y in g Thompson's motion for a sentencing reduction. As Thompson has not shown that the interest of justice requires a p p o in tm e n t of counsel in this case, his motion for appointment of counsel is d e n ie d . See United States v. Robinson, 542 F.3d 1045, 1052 (5th Cir. 2008); U n ite d States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995). A F F I R M E D ; MOTION DENIED

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