USA v. Moore

Filing

UNPUBLISHED OPINION FILED. [08-10749 Affirmed] Judge: CDK , Judge: FPB , Judge: JWE. Mandate pull date is 11/23/2010 for Appellant Arthur Moore Jr.; denying motion to appoint counsel filed by Appellant Mr. Arthur Moore, Jr. [6233394-2] [08-10749]

USA v. Moore

Case: 08-10749 Document: 00511281653 Page: 1 Date Filed: 11/02/2010

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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 . 08-10749 S u m m a r y Calendar November 2, 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. A R T H U R MOORE, JR 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. 5:06-CR-23-4

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* A r t h u r Moore, Jr., federal prisoner # 34590-177, appeals the district c o u r t's order granting his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence. Moore argues that the district court erred by implicitly determining that it could n o t resentence him below the modified guidelines sentence range. Citing United S ta te s v. Hicks, 472 F.3d 1167 (9th Cir. 2007), he maintains that United States v . Booker, 543 U.S. 220 (2005), and Kimbrough v. United States, 552 U.S. 85 (2 0 0 7 ), apply to § 3582(c)(2) proceedings and make the guidelines sentence range
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-10749 Document: 00511281653 Page: 2 Date Filed: 11/02/2010 No. 08-10749 a d v is o r y only. Moore asserts that, even after the guideline amendments, the c r a c k to powder ratio in the Guidelines is unreasonable and that he should be r e s e n t e n c e d using a 20-1 ratio. He maintains that the district court committed p r o c e d u r a l error by not giving a sufficient explanation for the sentence and by n o t holding an evidentiary hearing. Moore additionally argues that the district c o u r t erred by denying his motion for appointment of counsel, and he moves for a p p o in tm e n t of counsel on appeal. 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). Moore's argument based o n Booker and Kimbrough therefore is unavailing, and the district court did not e r r by implicitly determining that it could not resentence Moore below the r e c a lc u la t e d guidelines sentence range. See id. T h e district court was not required to give any reasons for the sentence, a n d , therefore, it did not abuse its discretion by failing to give sufficient reasons fo r the sentence. See United States v. Evans, 587 F.3d 667, 674 (5th Cir. 2009), c e r t. denied, 130 S. Ct. 3462 (2010). Moore did not have a right to be present at t h e § 3582(c) proceeding. See FED. R. CRIM. P. 43(b)(4). As Moore has not c h a lle n g e d the district court's guidelines sentence range calculation, he has not s h o w n that a factual dispute existed, and the district court did not abuse its d is c r e t io n by not holding an evidentiary hearing. See United States v. Jones, 370 F . App'x 477, 478 (5th Cir. 2010), petition for cert. filed (June 10, 2010) (No. 0 9 -1 1 3 4 6 ). T h e r e is no right to appointed counsel in a § 3582(c)(2) proceeding. United S ta te s v. Whitebird, 55 F.3d 1007, 1010-11 (5th Cir. 1995); United States v. H e r e fo r d , No. 08-10452, 2010 WL 2782780 at *1-*2 (5th Cir. July 12, 2010) 2

Case: 08-10749 Document: 00511281653 Page: 3 Date Filed: 11/02/2010 No. 08-10749 (u n p u b lis h e d ). Moreover, the interest of justice did not require the appointment o f counsel because Moore's § 3582(c)(2) motion did not involve complicated or u n r e s o lv e d issues. Cf. United States v. Robinson, 542 F.3d 1045, 1052 (5th Cir. 2 0 0 8 ). The district court did not err by denying Moore's motion for appointment o f counsel, and we decline to appoint counsel on appeal for the same reasons. A F F I R M E D ; MOTION FOR APPOINTMENT OF COUNSEL DENIED.

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