USA v. Mack

Filing

UNPUBLISHED OPINION FILED. [08-31147 Affirmed] Judge: CDK , Judge: HRD , Judge: JLD. Mandate pull date is 01/13/2011 [08-31147]

USA v. Mack

Case: 08-31147 Document: 00511331353 Page: 1 Date Filed: 12/23/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-31147 S u m m a r y Calendar December 23, 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 A R L E S SIDNEY MACK, 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 Western District of Louisiana U S D C No. 3:05-CR-30040-1

B e fo r e KING, DeMOSS, and DENNIS, Circuit Judges. P E R CURIAM:* C h a r le s Sidney Mack, Jr., federal prisoner # 12930-035, was convicted in 2 0 0 6 of conspiracy to distribute 50 grams or more of cocaine base and sentenced t o 240 months of imprisonment, the statutory minimum applicable to his c o n v ic tio n . He now appeals the district court's denial of his motion for a

s e n te n c e reduction pursuant to 18 U.S.C. § 3582(c)(2) based on amendments to t h e Sentencing Guidelines governing crack cocaine. He contends that the

d is t r ic t court erred in determining that he was ineligible for relief under
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

Dockets.Justia.com

Case: 08-31147 Document: 00511331353 Page: 2 Date Filed: 12/23/2010 No. 08-31147 § 3582(c)(2). He also contends that the applicability of § 3582(c)(2) entitled him t o a reconsideration of the factors under 18 U.S.C. § 3553(a) and the application o f United States v. Booker, 543 U.S. 220 (2005), and its progeny. B e c a u s e Mack was subject to a mandatory statutory minimum, the district c o u r t lacked authority to grant a reduction under § 3582(c)(2). See United States v . Carter, 595 F.3d 575, 579-81 (5th Cir. 2010). Additionally, § 3582(c)(2)

p r o c e e d in g s are not full resentencings, and the principles of Booker and its p r o g e n y do not apply to § 3582(c)(2) proceedings. Dillon v. United States, 130 S . Ct. 2683, 2690-94 (2010). Thus, Mack's arguments are unavailing.

Furthermore, to the extent Mack seeks to rely on Amendment 709 to the S e n te n c in g Guidelines as a basis for relief under § 3582(c)(2), Amendment 709 d o e s not provide a basis for such relief because it is not one of the eligible a m e n d m e n t s covered under U.S.S.G. §1B1.10(c). See § 1B1.10(a), p.s.; see also § 1B1.10, comment. (n.1(A)). T h e judgment of the district court is AFFIRMED.

2