USA v. Derrow

Filing 511104202

08-41011

Case: 08-40958

Document: 00511104202

Page: 1

Date Filed: 05/07/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-40958 S u m m a r y Calendar May 7, 2010 Lyle W. Cayce Clerk

U N I T E D STATES OF AMERICA, P la in tiff-A p p e lle e v. M IC H A E L JOSEPH DERROW, D e fe n d a n t-A p p e lla n t

A p p e a ls from the United States District Court fo r the Eastern District of Texas U S D C No. 9:98-CR-6-9

B e fo r e KING, STEWART, and HAYNES, Circuit Judges. P E R CURIAM:* M ic h a e l Joseph Derrow, federal prisoner # 03199-286, appeals the denial o f his 18 U.S.C. § 3582 motion to reduce his 480-month sentence following his c o n v ic t io n for conspiracy to possess with the intent to distribute crack cocaine a n d possession with the intent to distribute crack cocaine. Derrow sought a r e d u c t io n in his sentence based on Amendment 706 to the crack cocaine G u id e l in e s . The Government has filed a motion for summary affirmance or,

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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a lt e r n a t iv e ly , for an extension of time to file a brief on the merits. Derrow has m o v e d to respond to the Government's motion. A lt h o u g h the district court's decision whether to reduce a sentence o r d in a rily is reviewed for an abuse of discretion, a court's interpretation of the G u id e lin e s is reviewed de novo. United States v. Doublin, 572 F.3d 235, 237 (5th C i r . ) , cert. denied, 130 S. Ct. 517 (2009). Contrary to Derrow's argument that th e district court failed to provide reasons for its denial, the sentencing court is n o t required to provide reasons for its denial of a § 3582 motion. See United S t a te s v. Evans, 587 F.3d 667, 674 (5th Cir. 2009), petition for cert. filed, (Jan. 2 8 , 2010) (09-8939). The district court did not provide reasons for its denial, but t h e order was entered after the Government filed its response arguing that D e r r o w 's guidelines range was not altered by the amendments. Because the d is t r ic t court's denial of Derrow's motion was presumably based on a d e t e r m in a t i o n that Derrow's sentence remained the same under the amended G u id e lin e s , review is de novo. See id. S e c t io n 3582(c)(2) permits the discretionary modification of a defendant's s e n te n c e where the sentencing range is later lowered by the Sentencing C o m m is s io n , "if such a reduction is consistent with the policy statements issued b y the Sentencing Commission." United States v. Gonzalez-Balderas, 105 F.3d 9 8 1 , 982 (5th Cir. 1997). Sentence reductions under § 3582 are thus governed b y the policy statements of the Guidelines. Doublin, 572 F.3d at 237. U n d e r the amended Guidelines, Derrow's offense level was altered, but his g u id e l in e s range remained the same. Thus, a reduction was not permitted under § 3582(c)(2). See § 3582(c)(2). Derrow's arguments regarding the applicability o f United States v. Booker, 543 U.S. 220 (2005), and Apprendi v. New Jersey, 530 U .S . 466 (2000), are unavailing because those concerns "do not apply in an 18 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 2

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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 marks and citation omitted). T h e district court did not err in denying Derrow's motion for a reduction o f sentence. The district court's judgment is AFFIRMED. The Government's m o t io n for summary affirmance is GRANTED, and its motion for an extension o f time is DENIED. Derrow's motion to file a response to the Government's m o t io n for summary affirmance is DENIED.

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