USA v. Fisher


UNPUBLISHED OPINION FILED. [08-41284 Affirmed ] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 11/22/2010; granting motion for summary affirmance filed by Appellee USA [6340259-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [6340259-3] [08-41284]

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USA v. Fisher Case: 08-41284 Document: 00511280208 Page: 1 Date Filed: 11/01/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 08-41284 S u m m a r y Calendar November 1, 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. L E E ANTHONY FISHER, 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 Eastern District of Texas U S D C No. 1:95-CR-141-ALL B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges P E R CURIAM:* L e e Anthony Fisher, federal prisoner # 19177-009, appeals the denial of h is motion for a sentence reduction under 18 U.S.C. 3582(c)(2). In 1995, a jury c o n v ic t e d Fisher of possession with intent to distribute crack cocaine and p o s s e s s io n of a firearm by a felon. Based on Fisher's prior convictions for drug t r a ffic k in g and aggravated assault, the district court concluded that Fisher was a career offender within the meaning of 4B1.1 of the United States Sentencing 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 08-41284 Document: 00511280208 Page: 2 Date Filed: 11/01/2010 No. 08-41284 G u id e lin e s and sentenced him to 300 months in prison. Fisher raises three c h a lle n g e s to his sentence in this 3582(c)(2) proceeding. None has merit. First, Fisher contends that the district court erred by refusing to reduce h is sentence in light of Amendments 706, 711, and 715 to the Sentencing G u id e lin e s . These amendments reduced the base offense levels for crack-cocaine o ffe n s e s . United States v. Burns, 526 F.3d 852, 861 (5th Cir. 2008). The S e n te n c in g Commission made these amendments retroactive. Id. "Section 3 5 8 2 (c )(2 ) permits a district court to reduce a term of imprisonment when it is b a s e d upon a sentencing range that has subsequently been lowered by an a m e n d m e n t to the Guidelines, if such a reduction is consistent with the policy s t a t e m e n t s issued by the Sentencing Commission." United States v. GonzalezB a ld e r a s , 105 F.3d 981, 982 (5th Cir. 1997) (per curiam). In other words, a d e fe n d a n t is eligible for a sentence reduction under 3582(c)(2) only if an a m e n d m e n t has lowered the Guideline range applicable to the defendant. See U .S . SENTENCING GUIDELINES MANUAL 1B.1.10 cmt. n.1 (2009). The 2007 and 2 0 0 8 "crack cocaine guideline amendments do not apply to prisoners sentenced a s career offenders" under 4B1.1 of the Guidelines. United States v. Anderson, 5 9 1 F.3d 789, 791 (5th Cir. 2009) (per curiam). Therefore, the district court did n o t err in denying Fisher's motion to have his sentence reduced under 3582(c)(2). Next, Fisher argues that even if none of the amendments listed in G u id e lin e s 1B.10(c) explicitly authorizes a reduction in his sentence, the d is t r ic t court nonetheless should have exercised its discretion under United S ta te s v. Booker, 543 U.S. 220 (2005), to reduce his sentence based on the factors e n u m e r a t e d in 18 U.S.C. 3553(a). However, "Booker does not alter the m a n d a t o r y character of Guideline 1B1.10's limitations on sentence reductions." United States v. Doublin, 572 F.3d 235, 238 (5th Cir.) (per curiam), cert. denied, 1 3 0 S. Ct. 517 (2009); see also Dillon v. United States, 130 S. Ct. 2683, 2692 (2 0 1 0 ) ("Given the limited scope and purpose of 3582(c)(2), we conclude that 2 Case: 08-41284 Document: 00511280208 Page: 3 Date Filed: 11/01/2010 No. 08-41284 p r o c e e d in g s under that section do not implicate the interests identified in B o o k e r ."). Under Guideline 1B1.10(a)(2)(A), "[a] reduction in the defendant's t e r m of imprisonment . . . is not authorized under 18 U.S.C. 3582(c)(2) if . . . [n ]o n e of the amendments listed in subsection (c) is applicable to the defendant." Fisher has not identified any amendment listed in Guideline 1B1.10(c) that is a p p lic a b le to him. As a result, the district court was not authorized to reduce his s e n te n c e under 3582(c)(2). F in a lly , Fisher asserts that he should not have been sentenced as a career o ffe n d e r because one of his prior offenses was a deferred adjudication. But "[a] 3582(c)(2) motion is not a second opportunity" to challenge "the a p p r o p r ia te n e s s of the original sentence." United States v. Whitebird, 55 F.3d 1 0 0 7 , 1011 (5th Cir. 1995). And even if it were, an offense resolved via deferred a d ju d ic a t io n may count toward a defendant's status as a career offender under 4B1.1 of the Guidelines where, as here, the defendant pled guilty to the o ffe n s e . See United States v. Daniels, 588 F.3d 835, 838 (5th Cir. 2009) (per c u r ia m ), cert. denied, 130 S. Ct. 2424 (2010). The Government has moved for summary affirmance. The motion is G R A N T E D , and the judgment of the district court is AFFIRMED. The G o v e r n m e n t 's motion for an extension of time in which to file a brief is DENIED a s moot. 3

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