USA v. Wilson

Filing

REVISED UNPUBLISHED OPINION FILED. [6667133-2] [08-10622, 08-10793]

USA v. Wilson

Case: 08-10622 Document: 00511286299 Page: 1 Date Filed: 11/05/2010

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REVISED NOVEMBER 5, 2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-10622 S u m m a r y Calendar November 4, 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. W E S L E Y JAMES WILSON, also known as Wes, 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. 4:92-CR-141-6

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* W e s le y James Wilson, federal prisoner # 23795-077, appeals the district c o u r t's denial of his motion pursuant to 18 U.S.C. § 3582(c)(2) to reduce his s e n te n c e for drug trafficking conspiracy, possession with intent to manufacture a n d distribute cocaine base, and money laundering. Wilson also moves to amend h is appellate brief. To the extent that the motion to amend constitutes Wilson's a m e n d e d brief, the motion is granted; to the extent that the motion seeks

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-10622 Document: 00511286299 Page: 2 Date Filed: 11/05/2010 No. 08-10622 p e r m is s io n to file an additional brief or memorandum of law, the motion is denied. W ils o n argues that he is entitled to a sentence reduction under § 3582(c)(2) b a s e d on Amendments 706 and 711 to the United States Sentencing Guidelines. However, because he was held accountable for more than 4.5 kilograms of c o c a in e base, Amendment 706 to the Sentencing Guidelines, as amended by A m e n d m e n t 711, both of which modified the sentencing ranges applicable to crack cocaine offenses, did not change his sentencing range.

U.S.S.G.§ 2D1.1(c)(1); see also id. cmt. n.10(D)(ii). W ils o n also argues that he is entitled to a sentence reduction under § 3582(c)(2) based on the district court's incorrect drug quantity determination a n d the fact that the jury did not make a finding concerning the drug quantity a t t r ib u t e d to him at sentencing. However, a motion under § 3582(c)(2) "is not a s e c o n d opportunity to present mitigating factors to the sentencing judge, nor is it a challenge to the appropriateness of the original sentence." United States v. W h ite b ir d , 55 F.3d 1007, 1011 (5th Cir. 1995). Furthermore, this court has r e c o g n iz e d that United States v. Booker, 543 U.S. 220 (2005), did not alter the m a n d a t o r y character of § 1B1.10's limitations on sentence reductions. United S ta te s v. Doublin, 572 F.3d 235, 238 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). Therefore, these claims are not cognizable in a § 3582(c)(2) motion. See

W h ite b ir d , 55 F.3d at 1011; United States v. Evans, 587 F.3d 667, 674 (5th Cir. 2 0 0 9 ), cert. denied, 130 S. Ct. 3462 (2010). I n light of the foregoing, Wilson has not shown that the district court a b u s e d its discretion in denying his § 3582(c)(2) motion. See id. at 672. A F F I R M E D ; MOTION TO AMEND BRIEF GRANTED TO EXTENT T H A T MOTION CONSTITUTES AMENDED BRIEF AND DENIED TO E X T E N T THAT MOTION SEEKS PERMISSION TO FILE NEW BRIEF OR M E M O R A N D U M OF LAW.

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