USA v. Blake

Filing

UNPUBLISHED OPINION FILED. [08-20757 Affirmed ] Judge: CDK , Judge: FPB , Judge: JWE Mandate pull date is 11/23/2010; denying motion to amend document filed by Appellant Mr. Edward L Blake [6644042-2]; denying motion to appoint counsel filed by Appellant Mr. Edward L Blake [6225291-2] [08-20757]

USA v. Blake

Case: 08-20757 Document: 00511281574 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 . 08-20757 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. E D W A R D LIONEL BLAKE, 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 Southern District of Texas U S D C No. 4:98-CR-215-ALL

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* E d w a r d Lionel Blake, federal prisoner # 70357-079, filed a § 18 U .S .C . 3582(c)(2) motion for reduction of sentence based on the retroactive a m e n d m e n t s to the crack cocaine Sentencing Guidelines. The district court fo u n d that Blake was not eligible for a reduction because he had been sentenced a s a career offender. B la k e first moves for appointment of counsel on appeal. Although we have n o t held that a defendant is entitled to counsel when appealing a § 3582 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-20757 Document: 00511281574 Page: 2 Date Filed: 11/02/2010 No. 08-20757 w e have found that we have discretion to appoint counsel "in the interest of ju s ti c e . " United States v. Robinson, 542 F.3d 1045, 1052 (5th Cir. 2008).

Because we conclude that the district court correctly found that Blake was not e lig ib le for relief, we decline to exercise our discretion to appoint counsel. S e c t io n 3582(c)(2) permits the discretionary reduction of a defendant's s e n te n c e where the applicable sentencing range is later lowered by the S e n te n c in g Commission. See § 3582(c)(2); United States v. Doublin, 572 F.3d 2 3 5 , 237 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). A district court's decision w h e t h e r to reduce a sentence is reviewed for an abuse of discretion, and its in t e r p r e t a t io n of the Guidelines is reviewed de novo. United States v. Evans, 587 F .3 d 667, 672 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010). Because the d is t r ic t court's denial of Blake's motion was based on its determination that B la k e was not eligible for a reduction due to his career offender status under the S e n te n c in g Guidelines, review is de novo. See Doublin, 572 F.3d at 237. B la k e argues that he is not precluded from receiving a reduction merely b e c a u s e he was sentenced as a career offender and that the calculation of an o ffe n s e level based on the amount of drugs still is relevant. However, when a d e fe n d a n t is sentenced as a career offender, the "base offense level is moored to t h e statutory maximum penalty of the underlying crime," not the drug amount U n ite d States v. Anderson, 591 F.3d 789, 790 & n.4 (5th Cir. 2009). Therefore, B la k e "was not sentenced based on a sentencing range that was subsequently lo w e r e d by the Sentencing Commission." Id. at 791 & n.8 (internal quotations a n d citation omitted). The district court was correct in concluding that Blake w a s not eligible for a reduction under § 3582(c)(2). See id. at 790-91. B la k e also argues that, because the guidelines are no longer mandatory fo llo w in g United States v. Booker, 543 U.S. 220 (2005), the requirements of § 1B1.10 that limit sentencing reductions also are not mandatory. In Doublin, w e held that Booker does not apply and does not alter the mandatory character o f § 1B1.10's limitations on sentence reductions. Doublin, 572 F. 3d at 238. The 2

Case: 08-20757 Document: 00511281574 Page: 3 Date Filed: 11/02/2010 No. 08-20757 S u p r e m e Court also has held that Booker does not apply to § 3582(c)(2) p r o c e e d in g s . Dillon v. United States, 130 S. Ct. 2683, 2692 (2010). A F F I R M E D ; MOTION DENIED.

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