USA v. Clark

Filing

UNPUBLISHED OPINION FILED. [08-50726 Affirmed ] Judge: CDK , Judge: FPB , Judge: JWE Mandate pull date is 11/16/2010 [08-50726]

USA v. Clark

Case: 08-50726 Document: 00511275397 Page: 1 Date Filed: 10/26/2010

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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 . 08-50726 S u m m a r y Calendar October 26, 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 O H N MICHAEL CLARK, 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. 1:06-CR-26-1

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* I n July 2006, John Michael Clark, federal prisoner # 57752-180, was c o n v ic t e d by guilty plea of possession with intent to distribute cocaine base and b e in g a felon in possession of a firearm. He now appeals pro se from the district c o u r t's denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction based u p o n the crack cocaine amendments to the Sentencing Guidelines. In that d e n ia l, the district court noted that Clark could not benefit from the crack c o c a in e amendments because his base offense level would have remained 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-50726 Document: 00511275397 Page: 2 Date Filed: 10/26/2010 No. 08-50726 s a m e even if based solely upon the amount of methamphetamine that was a t t r ib u t e d to him. O n appeal, Clark argues that his sentence should have been based solely u p o n crack cocaine and that the district court lacked jurisdiction to sentence him b a s e d upon any other controlled substance. He also asserts that the district c o u r t violated Amendment 715 to the Sentencing Guidelines by failing to show h o w it calculated the amount of crack cocaine attributable to him when c o n s id e r i n g his § 3582(c)(2) motion. These arguments lack merit. Moreover, C la r k cannot utilize a § 3582(c)(2) motion to challenge his original sentence. See U n ite d States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995). E x a m in a t io n of the record reveals that the district court correctly c o n c lu d e d that Clark could not benefit from the crack cocaine amendments. The d is t r ic t court therefore did not abuse its discretion by denying Clark's instant m o t io n . See United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert. d e n ie d , 130 S. Ct. 3462 (2010). T h e judgment of the district court is AFFIRMED.

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