USA v. Blount

Filing

UNPUBLISHED OPINION FILED. [08-30997 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 11/29/2010 [08-30997]

USA v. Blount

Case: 08-30997 Document: 00511287000 Page: 1 Date Filed: 11/08/2010

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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 . 08-30997 S u m m a r y Calendar November 8, 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. B E N J A M IN BLOUNT, 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 Western District of Louisiana U S D C No. 2:98-CR-20058-3

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* B en ja m in Blount, federal prisoner # 06674-035, appeals the district court's d e n ia l of his 18 U.S.C. § 3582(c)(2) motion to reduce his life sentence for c o n s p ir in g to distribute more than 50 grams of cocaine base. The crack cocaine a m e n d m e n t s are inapplicable to an offender whose offense level was based on 4.5 k ilo g r a m s or more of crack cocaine. U.S.S.G. § 2D1.1 n.10(D)(ii)(I). Blount's o ffe n s e level was based on 164.7 kilograms, and thus was not affected by the c r a c k cocaine amendments. See id.; § 3582(c)(2). Because Blount's offense level
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-30997 Document: 00511287000 Page: 2 Date Filed: 11/08/2010 No. 08-30997 w a s not affected by the crack cocaine amendments, he was ineligible for relief, a n d the district court's denial of his motion for § 3582(c)(2) relief was not an a b u s e of discretion. See United States v. Evans, 587 F.3d 667, 672 (5th Cir.), c e r t. denied, 130 S. Ct. 3462 (2009); United States v. Doublin, 572 F.3d 235, 237 (5 t h Cir.), cert. denied, 130 S. Ct. 517 (2009). Blount's argument that the district court had the discretion to reduce his s e n te n c e under § 3582 in light of United States v. Booker, 543 U.S. 220 (2005), is unavailing because "the concerns at issue in Booker do not apply in an 1 8 U.S.C. § 3582(c)(2) proceeding." Doublin, 572 F.3d at 238. Although the G u id e lin e s must be treated as advisory in an original sentencing proceeding, B o o k e r does not prevent Congress from incorporating a guideline provision "as a means of defining and limiting a district court's authority to reduce a sentence u n d e r § 3582(c)." Id. at 239 (internal quotation and citation omitted). B lo u n t also contends that the district court erred by denying his § 3582(c)(2) motion without conducting an evidentiary hearing. He argues that h is motion raised issues concerning the application of Booker and that all parties s h o u ld have been present when these issues were resolved. P u r s u a n t to the Federal Rules of Criminal Procedure, a defendant need n o t be present at a § 3582(c) proceeding. FED. R. CRIM. P. 43(b)(4). Generally, a district court must hold a hearing only if it is necessary because the facts are in dispute. See Dickens v. Lewis, 750 F.2d 1251, 1255 (5th Cir. 1984). Because B lo u n t was ineligible for relief under § 3582(c)(2), the district court did not abuse it s discretion by denying Blount's motion for a reduction in sentence absent an e v id e n t ia r y hearing. See id.; FED. R. CRIM. P. 43(b)(4). T h e judgment of the district court is AFFIRMED.

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