USA v. Magallanez

Filing

UNPUBLISHED OPINION FILED. [08-50349 Affirmed ] Judge: EGJ , Judge: EMG , Judge: CES Mandate pull date is 11/17/2010; denying motion to file appellant's supp brief filed by Appellant Mr. Emiliano Carrasco Magallanez [6307817-2] [08-50349]

USA v. Magallanez Case: 08-50349

Document: 00511276359 Page: 1 Date Filed: 10/27/2010

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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 . 08-50349 S u m m a r y Calendar October 27, 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 M I L I A N O CARRASCO MAGALLANEZ, 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. 1:03-CR-66-1

B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* E m ilia n o Carrasco Magallanez pleaded guilty to one count of conspiracy t o possess crack cocaine with intent to distribute and was sentenced to serve 121 m o n th s in prison and a three-year term of supervised release. He appeals the d is t r ic t court's order denying his motion for reduction of sentence pursuant to 1 8 U.S.C. § 3582(c)(2). According to Magallanez, the denial was improper

b e c a u s e he was sentenced based on both crack and powder cocaine. Additionally, h e argues that his sentence is flawed because neither the information nor the
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-50349 Document: 00511276359 Page: 2 Date Filed: 10/27/2010 No. 08-50349 p le a agreement specified the amount of drugs involved with his offense. Magallanez moves this court for authorization to file a supplemental brief. None of the arguments raised in this appeal suffices to show that the d is t r ic t court abused its discretion in connection with its denial of Magallanez's § 3582(c) motion. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert. d e n ie d , 130 S. Ct. 3462 (2010). Insofar as Magallanez contends that he was s e n te n c e d based on both powder and crack cocaine, our review of the record r e fu t e s this assertion and supports the district court's determination that M a g a lla n e z was not entitled to the relief sought because his sentence was based o n powder cocaine. The instant § 3582 motion is not a proper vehicle for

M a g a lla n e z 's additional challenge to his sentence. United States v. Whitebird, 5 5 F.3d 1007, 1011 (5th Cir. 1995). The judgment of the district court is

A F F IR M E D , and Magallanez's motion is DENIED.

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