USA v. Trevino

Filing 920101230

Opinion

Case: 08-50629 Document: 00511336094 Page: 1 Date Filed: 12/30/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-50629 S u m m a r y Calendar December 30, 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. M I C H A E L ADAM TREVINO, also known as Michael Trevino, 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. 5:99-CR-422-ALL

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* M ic h a e l Adam Trevino, federal prisoner # 65127-080, pleaded guilty to p o s s e s s io n with the intent to distribute more than 50 grams of cocaine base. See 2 1 U.S.C. § 841. The district court departed downward from Trevino's career o ffe n d e r guidelines range and sentenced him to 240 months of imprisonment. Trevino appeals the district court's denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction based on Amendment 706 to the crack cocaine Sentencing G u id e lin e s .
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-50629 Document: 00511336094 Page: 2 Date Filed: 12/30/2010 No. 08-50629 " T h e crack cocaine guideline amendments do not apply to prisoners s e n te n c e d as career offenders." United States v. Anderson, 591 F.3d 789, 791 (5 t h Cir. 2009). T r e v in o argues that, although he was designated a career offender, the d is t r ic t court downwardly departed so that he was ultimately sentenced based o n the crack cocaine guidelines and, thus, he is eligible for a § 3582(c)(2) r e d u c t io n . Trevino's argument is unsupported by the record, which reflects that t h e district court adopted the career offender calculations. There is no indication t h a t the district court based its departure sentence on the crack cocaine g u id e lin e s . Consequently, Trevino was ineligible for a § 3582(c)(2) sentence r e d u c t io n . See Anderson, 591 F.3d at 791. The district court did not abuse its d is c r e t io n in denying Trevino's motion for a sentence reduction. See id.; United S ta te s v. Townsend, 55 F.3d 168, 170 (5th Cir. 1995). A c c o r d in g ly , the Government's motion for summary affirmance is G R A N T E D , and the judgment is AFFIRMED. The Government's alternative m o t io n for an extension of time in which to file a brief is DENIED as u nn ecessary.

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