USA v. Brown

Filing

UNPUBLISHED OPINION FILED. [08-31055 Affirmed ] Judge: EGJ , Judge: EMG , Judge: CES Mandate pull date is 12/13/2010 [08-31055]

USA v. Brown

Case: 08-31055 Document: 00511300509 Page: 1 Date Filed: 11/22/2010

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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 . 08-31055 S u m m a r y Calendar November 22, 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. C H R I S T O P H E R MICHAEL BROWN, 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. 1:01-CR-10012-2

B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* C h r is t o p h e r Michael Brown, federal prisoner # 10980-035, was convicted b y a jury of one count of conspiracy to distribute cocaine and cocaine base (crack) a n d four distribution counts. Brown was sentenced to life in prison on the c o n s p ir a c y count and concurrent terms of 40 year on the distribution counts. Brown now appeals the district court's denial of his 18 U.S.C. § 3582(c)(2) motion t o reduce his sentence based on amendments to the Sentencing Guidelines r e d u c in g base offense levels for some crack cocaine offenses. Brown argues that
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-31055 Document: 00511300509 Page: 2 Date Filed: 11/22/2010 No. 08-31055 t h e district court erred by concluding that the amendments did not reduce his s e n te n c in g range, asserting that the amendments generally had the effect of r e d u c in g base offense levels by two levels; that the application of the 4.5 k ilo g r a m threshold for a base offense level of 38 was improperly applied to him r e t r o a c t iv e ly in violation of the Ex Post Facto Clause; that the district court had a u t h o r it y to revisit his sentence and should have treated the Guidelines as a d v is o r y rather than mandatory pursuant to United States v. Booker, 543 U.S. 2 2 0 (2005); and that the district court should have held an evidentiary hearing. Brown's arguments are without merit. A m e n d m e n t 706 altered the thresholds for crack cocaine offense levels. Previously, more than 1.5 kilograms of crack cocaine resulted in a base offense le v e l of 38; under the amendments, it takes 4.5 kilograms of crack to achieve t h a t offense level. However, Brown was held accountable for 106.667 kilograms o f crack cocaine, which is well above the amended amount need for level 38. Thus, the amendments did not affect Brown's guidelines range, and the district c o u r t had no authority to reduce his sentence. See U.S.S.G.§ 1B1.10(a)(2)(B), p .s .; United States v. Carter, 595 F.3d 575, 580 (5th Cir. 2010). B r o w n 's arguments regarding Booker are foreclosed by Dillon v. United S ta te s , 130 S. Ct. 2683, 2691-94 (2010), and United States v. Doublin, 572 F.3d 2 3 5 , 238 (5th Cir. 2009). In addition, there was no ex post facto violation b e c a u s e Brown was not subjected to greater punishment by the retroactive a p p lic a t io n of the amendments. See United States v. Kimler, 167 F.3d 889, 893 (5 t h . Cir. 1999). Finally, Brown has identified no factual disputes that required a n evidentiary hearing. T h e judgment of the district court is AFFIRMED.

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