USA v. Garnett

Filing

UNPUBLISHED OPINION FILED. [08-50332 Affirmed] Judge: EGJ , Judge: EMG , Judge: CES. Mandate pull date is 12/10/2010 [08-50332]

USA v. Garnett

Case: 08-50332 Document: 00511299647 Page: 1 Date Filed: 11/19/2010

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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 . 08-50332 S u m m a r y Calendar November 19, 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. E R V I N DARRELL GARNETT, 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 Texas U S D C No. 1:99-CR-86-ALL

B e fo r e JOLLY, GARZA and STEWART, Circuit Judges. P E R CURIAM:* E r v in Darrell Garnett, federal prisoner # 95121-080, appeals the district c o u r t 's denial of his motion pursuant to 18 U.S.C. § 3582(c)(2) to reduce his s e n te n c e . Garnett argues that he is entitled to a sentence reduction under § 3582(c)(2) based on Amendments 706 and 711 to the United States Sentencing G u id e lin e s . He asserts that the district court abused its discretion by using m a r iju a n a equivalents to determine his base offense level because the marijuana c o n v e r s io n table contravenes the purpose of Amendment 706. He also asserts

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-50332 Document: 00511299647 Page: 2 Date Filed: 11/19/2010 No. 08-50332 t h a t the district court should have been unrestricted in its discretion to reduce h is sentence based on the factors set forth in 18 U.S.C. § 3553(a). The district court's decision whether to reduce a sentence pursuant to § 3582(c)(2) is reviewed for abuse of discretion, while its interpretation or a p p lic a t io n of the Guidelines is reviewed de novo. United States v. Evans, 587 F .3 d 667, 672 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010). However, G a r n e t t did not challenge in the district court the utility of the marijuana c o n v e r s io n table, nor did he raise his argument concerning the district court's d is c r e t io n based on the § 3553(a) factors; these arguments, therefore, are r e v ie w e d for plain error. See United States v. Jones, 596 F.3d 273, 276 (5th Cir. 2 0 1 0 ), cert. denied, 2010 WL 1848457 (Oct. 4, 2010) (No. 09-10607); Puckett v. U n ite d States, 129 S. Ct. 1423, 1429 (2009). G a r n e t t has not established that the district court erred in denying his § 3582(c)(2) motion. Because Garnett was accountable for more than 4.5

k ilo g r a m s of cocaine base, he was ineligible for a sentence reduction based upon t h e crack cocaine amendments. See U.S.S.G. § 2D1.1(c)(1) & comment.

(n . 10(D)(ii)). His base offense level consequently was not modified, and his a d v is o r y guidelines range was not lowered as a result of the amendments. Thus, t h e district court did not abuse its discretion in determining that Garnett was in e lig ib le for a sentence reduction under § 3582(c)(2). See Evans, 587 F.3d at 672. To the extent that Garnett seeks to challenge the calculation of the r e le v a n t drug quantity at his initial sentencing, that issue is beyond the scope o f the guideline amendment and is not cognizable in a § 3582(c)(2) proceeding. See id. at 674. Accordingly, Garnett cannot show error, much less plain error, c o n c e r n in g this issue. See Jones, 596 F.3d at 276; Puckett, 129 S. Ct. at 1429. G a r n e t t also cannot establish clear or obvious error with respect to his c o n t e n t io n s that Gall v. United States, 552 U.S. 38 (2007), Kimbrough v. United S ta te s , 552 U.S. 85 (2007), and Booker v. United States, 543 U.S. 220 (2005) 2

Case: 08-50332 Document: 00511299647 Page: 3 Date Filed: 11/19/2010 No. 08-50332 s h o u ld apply in § 3582(c)(2) proceedings and that the district court should have b e e n unrestricted in its discretion to resentence him under the § 3553(a) factors. See Jones, 596 F.3d at 276; Puckett, 129 S. Ct. at 1429. The Supreme Court's d e c is io n in Booker does not apply to sentence reductions under § 3582(c)(2) b e c a u s e such proceedings are not full resentencings. United States v. Doublin, 5 7 2 F.3d 235, 238 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009); see also Dillon v . United States, 130 S. Ct. 2683, 2691-93 (2010). Garnett's argument based on B o o k e r and its progeny is therefore unavailing. A F F IR M E D .

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