USA v. Willard

Filing

UNPUBLISHED OPINION FILED. [08-10439 Affirmed 08-10504 Affirmed ] Judge: JLW , Judge: RHB , Judge: FPB Mandate pull date is 11/19/2010 [08-10439, 08-10504]

USA v. Willard

Case: 08-10439 Document: 00511278904 Page: 1 Date Filed: 10/29/2010

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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 . 08-10439 S u m m a r y Calendar October 29, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. D O N N I E RAY WILLARD, JR., D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 5:02-CR-83-ALL

B e fo r e WIENER, BARKSDALE, and BENAVIDES, Circuit Judges. P E R CURIAM:* P r o c e e d in g pro se, Donnie Ray Willard, Jr., federal prisoner # 28690-177, a p p e a l s the denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence following the recent amendments to the Sentencing Guidelines for crack cocaine o ffe n s e s . Willard pleaded guilty to possession with intent to distribute more t h a n 50 grams of cocaine base (crack cocaine) and was sentenced to 188 months in prison.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-10439 Document: 00511278904 Page: 2 Date Filed: 10/29/2010 No. 08-10439 W illa r d contends the district court erred in: (1) failing to order the

P r o b a t io n Office to amend the presentence investigation report (PSR) to reflect t h e two-level reduction (pursuant to the amendments) in his base offense level; (2 ) failing to apply the reduction to his sentence; (3) relying on his prior felony c o n v ic t io n s and arrests, which he maintains were waived by the Government as p a r t of the plea agreement; (4) relying on his post-sentencing conduct because h e had no prior notice such evidence would be considered; (5) denying him o p p o r t u n it y to object or refute the evidence at a hearing, in violation of his due p r o c e s s rights; and (6) failing to appoint him counsel. Guideline Amendments 706 and 711 effectively decreased the base-offense le v e ls for crack cocaine offenses by two levels. See United States v. Burns, 526 F .3 d 852, 861 (5th Cir. 2008); U.S.S.G. § 2D1.1; U.S.S.G. Supp. to App'x C, A m e n d . 706, 711. When a defendant's term of imprisonment is lowered by an a m e n d m e n t to the Sentencing Guidelines, the district court "may reduce the t e r m of imprisonment, after considering the factors set forth in section 3553(a) t o the extent that they are applicable, if such a reduction is consistent with a p p lic a b le policy statements issued by the Sentencing Commission". 18 U.S.C. § 3582(c)(2) (emphasis added). As reflected by the above-emphasized language in § 3582(c)(2), the district court is not compelled to grant a sentence reduction u n d e r that section. United States v. Evans, 587 F.3d 667, 673 (5th Cir. 2009), c e r t. denied, 130 S. Ct. 3462 (2010). The denial of a § 3582(c)(2) motion is r e v ie w e d for abuse of discretion. See id. at 671-72. Willard's contention concerning the court's failure to amend his PSR and d e n ia l of his motion for a two-level reduction is refuted by the record. First, p u r s u a n t to Guideline § 1B1.10(b), the district court's order of dismissal stated it determined the amended Guideline range applicable if the amendment had b e e n in effect at the time of the original sentence. Second, there is no authority, a n d Willard points to none, requiring the Probation Office to amend the original P S R or promulgate an addendum reflecting the specific Guideline range 2

Case: 08-10439 Document: 00511278904 Page: 3 Date Filed: 10/29/2010 No. 08-10439 g e n e r a t e d by the amendment. Third, Willard has not directed our court to any a u t h o r it y that would require the district court to specifically recite the numerical p a r a m e t e r s of the amended Guideline range. Fourth, the sentencing court is not r e q u ir e d to provide reasons for its denial of a § 3582 motion, explain its c o n s id e r a t io n of § 3553(a) factors, or specifically enumerate the amended G u id e lin e s range. See Evans, 587 F.3d at 674. With respect to Willard's contention concerning the district court's c o n s id e r a t io n of his post-sentence conduct and pre-arrest criminal history, the 2 0 0 8 amendments to the Guidelines specifically authorize the district court to c o n s id e r Willard's post-sentencing conduct. U.S.S.G. § 1B1.10, cmt. n.1(B)(iii). In addition, our court has "decline[d] to hold that a district court cannot consider p o s t -c o n v ic t io n conduct in determining whether to grant a sentencing reduction u n d e r § 3582(c)(2)". United States v. Smith, 595 F.3d 1322, 1323 (5th Cir.), cert. d e n ie d , 130 S. Ct. 3374 (2010). Moreover, consideration of Willard's criminal h is t o r y was proper and was not waived by the express language of Willard's plea a g r e e m e n t. See U.S.S.G. § 1B1.10, cmt. n.1.(B)(ii); § 3553(a). F u r t h e r , even assuming these developments constituted "new evidence" r e q u ir in g notice, Willard has not shown harmful error because his assertions w o u ld not entitle him to relief. See United States v. Mueller, 168 F.3d 186, 1 8 9 -9 0 (5th Cir. 1999). The district court did not abuse its discretion by denying Willard's motion fo r a sentence reduction without an evidentiary hearing because he asserted no d is p u t e d facts. See Dickens v. Lewis, 750 F.2d 1251, 1255 (5th Cir. 1984); FED. R . CRIM. P. 43(b)(4). Additionally, there was no abuse of discretion in not

a p p o in tin g Willard counsel. See United States v. Whitebird, 55 F.3d 1007, 10101 1 (5th Cir. 1995). AFFIRMED.

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