USA v. Dedrick

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UNPUBLISHED OPINION FILED. [08-50673 Affirmed ] Judge: CDK , Judge: FPB , Judge: JWE Mandate pull date is 12/13/2010; granting motion for summary affirmance filed by USA [6169475-2]; denying motion to extend time to file appellee's brief filed by USA [6169475-3]; denying motion to appoint counsel filed by Appellant Mr. Jerry Lewis Dedrick [6135065-2] [08-50673]

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USA v. Dedrick Case: 08-50673 Document: 00511301508 Page: 1 Date Filed: 11/22/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 08-50673 S u m m a r y Calendar November 22, 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. J E R R Y LEWIS DEDRICK, 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, Midland Division U S D C No. 7:02-CR-113-2 B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* J e r r y Lewis Dedrick, federal prisoner # 27140-180, appeals the district c o u r t's denial of his 18 U.S.C. 3582(c)(2) motion for a sentence reduction under t h e recent crack cocaine amendments. Dedrick argues that the district court e r r e d in sentencing him as a career offender because his prior convictions are not c o n t r o lle d substance offenses under U.S.S.G. 4B1.1 and 4B1.2. He also a s s e r t s that the district court failed to consider the 18 U.S.C. 3553(a) factors, e r r e d in denying a two-level decrease for his minor role in the offense, and erred 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Dockets.Justia.com Case: 08-50673 Document: 00511301508 Page: 2 Date Filed: 11/22/2010 No. 08-50673 in enhancing his sentence based on facts that were not found by a jury beyond a reasonable doubt. He maintains that because the district court erred in s e n te n c in g him as a career offender, he is entitled to a sentence reduction based o n the recent crack cocaine amendments. T h e district court did not err in denying Dedrick's 3582(c)(2) motion. "The crack cocaine guideline amendments do not apply to prisoners sentenced a s career offenders." United States v. Anderson, 591 F.3d 789, 791 (5th Cir. 2 0 0 9 ). Therefore, the district court did not abuse its discretion in denying D e d r ic k 's motion for a sentence reduction under 3582(c)(2) because he "was not s e n te n c e d based on a sentencing range that was subsequently lowered by the S e n te n c in g Commission." Id. (internal quotation marks and citation omitted). Moreover, Dedrick's arguments challenging his original sentencing are not c o g n iz a b le in a 3582(c)(2) motion as such a motion "is not a second opportunity t o present mitigating factors to the sentencing judge, nor is it a challenge to the a p p r o p r ia t e n e s s of the original sentence." United States v. Whitebird, 55 F.3d 1 0 0 7 , 1011 (5th Cir. 1995). To the extent that Dedrick argues that the G u id e lin e s were only advisory in the 3582(c)(2) proceeding, United States v. B o o k e r , 543 U.S. 220 (2005), does not apply to a 3582(c)(2) proceeding. Dillon v . United States, 130 S. Ct. 2683, 2691-94 (2010). In addition, given that Dedrick w a s sentenced as a career offender, the district court did not err in declining to c o n d u c t a 3582(c)(2) hearing or in refusing to appoint counsel for Dedrick. Simply put, Dedrick is not eligible for any sentence reduction under 3582(c)(2). Accordingly, the Government's motion for summary affirmance 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 alternative motion for an extension of time to file a brief is D E N I E D . Dedrick's motion for appointment of counsel on appeal is DENIED. 2

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