USA v. Walker

Filing

UNPUBLISHED OPINION FILED. [09-10065 Affirmed ] Judge: WED , Judge: JES , Judge: LHS. Mandate pull date is 11/19/2010; denying motion to appoint counsel filed by Appellant Ms. Gracie Walker [6343156-2] [09-10065]

USA v. Walker

Case: 09-10065 Document: 00511278788 Page: 1 Date Filed: 10/29/2010

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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 . 09-10065 S u m m a r y Calendar October 29, 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 , versu s G R A C I E WALKER, 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 Northern District of Texas U S D C No. 4:07-CR-3-7

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:*

G r a c ie Walker, federal prisoner # 35712-177, appeals the denial of her mot io n for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). She pleaded
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Dockets.Justia.com

Case: 09-10065 Document: 00511278788 Page: 2 Date Filed: 10/29/2010 No. 09-10065 g u ilt y to conspiracy to distribute a controlled substance and was sentenced und e r the career offender provision, U.S.S.G. § 4B1.1, to 290 months of imprisonm e n t. W a lk e r contends that Amendment 709 to the sentencing guidelines applies r e t r o a c t iv e ly to her criminal history calculation because the amendment became e ffe c t iv e while her case was pending on direct appeal. She asserts that under s e v e r a l subsections of § 4A1.2, as amended by Amendment 709, criminal history p o in ts were improperly assigned to her sentences. T h e decision whether to reduce a sentence under § 3582(c)(2) is discret io n a r y , so the denial of a § 3582(c) motion is reviewed for abuse of that discret io n . United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert. denied, 130 S . Ct. 3462 (2010). The district court is authorized to reduce a sentence based o n a sentencing range that subsequently was lowered by the Sentencing Comm is s io n only if the amendment to the guidelines is listed in U.S.S.G. § 1B1.10(c). See § 3582(c)(2); § 1B1.10(a)(1); § 1B1.10, comment. (n.1(A)); United States v. G o n z a le z -B a ld e r a s , 105 F.3d 981, 982 (5th Cir. 1997). Amendment 709 is not lis t e d in § 1B1.10(c), so the district court was not authorized to reduce the sent e n c e pursuant to § 3582(c)(2), and the denial of the motion was not an abuse of d is c r e t io n . See Evans, 587 F.3d at 672, 674. W a lk e r 's motion for the appointment of counsel is DENIED. There is no r ig h t to appointed counsel in a § 3582(c)(2) proceeding. United States v. Whiteb ir d , 55 F.3d 1007, 1010-11 (5th Cir. 1995). Moreover, because the district court w a s not authorized to grant § 3582(c)(2) relief, the interest of justice does not req u i r e appointment of counsel. Cf. United States v. Robinson, 542 F.3d 1045, 1 0 5 2 (5th Cir. 2008) (finding that the interest of justice required the appointm e n t of counsel where appeal raised issues not previously resolved by this c o u r t's precedent). A F F IR M E D .

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