USA v. Rose Aubrey

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UNPUBLISHED OPINION FILED. [09-10066 Affirmed ] Judge: CDK , Judge: FPB , Judge: JWE Mandate pull date is 01/03/2011 [09-10066]

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USA v. Rose Aubrey ase: 09-10066 C Document: 00511319430 Page: 1 Date Filed: 12/13/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-10066 S u m m a r y Calendar December 13, 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. R O S E MARY AUBREY, also known as Rose, 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. 3:00-CR-311-1 B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* R o s e Mary Aubrey, federal prisoner # 34761-077, was convicted of c o n s p ir a c y to possess with intent to distribute (1) in excess of five kilograms of c o c a in e , (2) in excess of fifty grams of crack cocaine, and (3) in excess of one h u n d r e d kilograms of marijuana, all in violation of 21 U.S.C. 846. She appeals t h e district court's denial of her 18 U.S.C. 3582(c)(2) motion for reduction of s e n te n c e . We review the district court's denial of a 3582(c)(2) motion for abuse 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-10066 Document: 00511319430 Page: 2 Date Filed: 12/13/2010 No. 09-10066 o f discretion. United States v. Doublin, 572 F.3d 235, 237 (5th Cir.), cert. denied, 1 3 0 S. Ct. 517 (2009). A u b r e y argues that the district court abused its discretion by denying her 3582(c)(2) motion. She maintains that the sentencing court never made any fin d in g s regarding the quantity of drugs attributable to her and that United S ta te s v. Booker, 543 U.S. 220 (2005), is applicable to 3582(c)(2) proceedings. Aubrey also argues that the district court erred in denying her motion for a p p o in te d counsel. S e c t io n 3582(c)(2) permits the discretionary modification of a defendant's s e n te n c e only where the defendant's sentencing range is actually lowered by the S e n te n c in g Commission. See 3582(c)(2). Because Aubrey was held accountable fo r more than 4.5 kilograms of cocaine base, Amendment 706 to the Sentencing G u id e lin e s , which modified the sentencing ranges applicable to crack cocaine o ffe n s e s , did not change her sentencing range. See U.S.S.G. Supp. to App'x C, A m e n d . 706; 2D1.1(c)(1). Further, a 3582(c)(2) motion "is not a second o p p o r t u n it y to present mitigating factors to the sentencing judge, nor is it a c h a lle n g e to the appropriateness of the original sentence." United States v. W h ite b ir d , 55 F.3d 1007, 1011 (5th Cir. 1995). Finally, contrary to Aubrey's a s s e r t io n , Booker is not applicable in 3582(c)(2) proceedings. See Dillon v. U n ite d States, 130 S. Ct. 2683, 2691-94 (2010); Doublin, 572 F.3d at 237-39. The d is t r ic t court also did not err in failing to appoint counsel to represent Aubrey in connection with her 3582(c)(2) motion. See Whitebird, 55 F.3d at 1010-11. A F F IR M E D . 2

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