USA v. Maracalin

Filing 920100927

Opinion

Case: 08-31156

Document: 00511244240

Page: 1

Date Filed: 09/24/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-31156 S u m m a r y Calendar September 24, 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. J U L I U S WARNER MARACALIN, also known as Big Warner, 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 Middle District of Louisiana U S D C No. 3:95-CR-4-1

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* J u liu s Warner Maracalin, federal prisoner # 02617-095, moves for leave t o proceed in forma pauperis (IFP) from the district court's order denying him a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706 t o the Sentencing Guidelines. The district court denied Maracalin leave to p r o c e e d IFP. M a r a c a lin argues that the district court erred by treating the Guidelines a n d the post-amendment sentencing range as mandatory, in violation of United
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-31156

Document: 00511244240 Page: 2 No. 08-31156

Date Filed: 09/24/2010

S ta te s v. Booker, 543 U.S. 220 (2005) and contends that the district court should h a v e considered his prison record when determining the sentence to be imposed. He argues that the district court should have considered his arguments that the d r u g quantity finding, firearm and role adjustments, and fine in his case violated B o o k e r , and that the district court should have considered a departure pursuant t o Kimbrough v. United States, 552 U.S. 85 (2007). S e c t io n 3582(c)(2) permits the discretionary modification of a defendant's s e n te n c e in certain cases where the sentencing range has been subsequently lo w e r e d by the Sentencing Commission. See United States v. Doublin, 572 F.3d 2 3 5 , 237 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). In such cases, the district c o u r t may reduce the sentence after considering the applicable factors of 18 U .S .C . § 3553(a) and the pertinent guideline policy statements. § 3582(c)(2). The district court's decision whether to reduce a sentence under section 3 5 8 2 (c )(2 ) is reviewed for abuse of discretion. United States v. Evans, 587 F.3d 6 6 7 , 672 (5th Cir. 2009), cert. denied, 130 S.Ct. 3462 (2010). An abuse of

d is c r e t io n occurs when a ruling is grounded in a legal error or a clearly e r r o n e o u s analysis of the evidence. In re Sealed Appellant, 194 F.3d 666, 670 (5 t h Cir. 1999). D is t r ic t courts are limited to the reduction allowed by the two-level d e c r e a s e in a defendant's offense level resulting from the application of A m e n d m e n t 706; they may not depart downwardly from the resulting offense le v e l. Doublin, 572 F.3d at 237-39. Maracalin's arguments as to the amendment b a s e d on Booker and Kimbrough therefore are unavailing. Moreover, "[a]

§ 3582(c)(2) motion is not a second opportunity to present mitigating factors to t h e judge, nor is it a challenge to the appropriateness of the original sentence." United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995). The district court t h u s did not err by declining to address as § 3582(c)(2) issues, specifically M a ra ca lin 's contentions regarding drug quantity, offense level adjustments, and t h e fine imposed with regard to his original sentencing. 2

Case: 08-31156

Document: 00511244240 Page: 3 No. 08-31156

Date Filed: 09/24/2010

M a r a c a lin attached to his pro se section 3582(c)(2) motion a progress r e p o r t indicating that he has received good work evaluations, undergone c o u n s e lin g , and pursued educational opportunities in prison. The district court d id not mention the progress report in the order denying section 3582(c)(2) relief. However, the report was before the district court, and the district court a r t ic u la t e d extensive reasons for denying Maracalin a sentence reduction. The d is t r ic t court presumptively considered Maracalin's progress report and d eterm in e d that the factors against a reduction outweighed Maracalin's progress t o w a r d s rehabilitation. See Evans, 587 F.3d at 673. M a r a c a lin has failed to demonstrate that his appeal involves legal points a r g u a b le on their merits. His IFP motion is DENIED. See Howard v. King, 707 F .2 d 215, 220 (5th Cir. 1983). Because the appeal is frivolous, it is DISMISSED. See United States v. Boutwell, 896 F.2d at 884, 889 (5th Cir. 1990).

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