USA v. Mundrall Lewis


UNPUBLISHED OPINION FILED. [09-10345 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 11/24/2010; granting motion for summary affirmance filed by Appellee USA [6339648-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [6339648-4]; denying motion to dismiss appeal filed by Appellee USA [6339648-3] [09-10345]

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USA v. Mundrall Lewis se: 09-10345 Ca Document: 00511283463 Page: 1 Date Filed: 11/03/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-10345 S u m m a r y Calendar November 3, 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 U N D R A L L MARIO LEWIS, 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. 7:06-CR-13-1 B e fo r e WIENER, PRADO and OWEN, Circuit Judges. P E R CURIAM:* M u n d r a ll Mario Lewis, federal prisoner # 27450-077, pleaded guilty to p o s s e s s io n with the intent to distribute crack cocaine. Lewis filed a pro se m o t io n for a reduction of his sentence under 18 U.S.C. 3582(c)(2) in which he s o u g h t a modification of his sentence due to a retroactive amendment to the S e n te n c in g Guidelines for crack cocaine offenses. Lewis appeals the district c o u r t's denial of his motion. The Government has filed a motion for dismissal or s u m m a r y affirmance or, alternatively, for an extension of time within which to 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-10345 Document: 00511283463 Page: 2 Date Filed: 11/03/2010 No. 09-10345 file a brief. The district court's denial of Lewis's motion is reviewed for an abuse o f discretion. See United States v. Anderson, 591 F.3d 789, 790-91 & n.6 (5th C ir . 2009). Lewis's guideline range was not derived from the quantity of crack cocaine in v o lv e d in the offense, but rather from his career offender status. "The crack c o c a in e guideline amendments do not apply to prisoners sentenced as career o ffe n d e r s ." Anderson, 591 F.3d at 791. Accordingly, the district court did not a b u s e its discretion in concluding that a reduction was not permitted under 3582(c)(2). See id. Lewis's argument that the district court had the discretion t o reduce his sentence in light of Booker, also is unavailing. See United States v . Doublin, 572 F.3d 235, 238 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009); see a ls o Anderson, 591 F.3d at 791. Lewis also argues that he had a right to counsel in the district court. In U n ite d States v. Whitebird, 55 F.3d 1007, 1010-11 (5th Cir. 1995), this court held t h a t a 3582(c)(2) movant had no right to the appointment of counsel in the d is t r ic t court. This court recently reaffirmed Whitebird's reasoning. See United S ta te s v. Hereford, No. 08-10452, 2010 WL 2728780 (5th Cir. July 12, 2010). Further, because Lewis was not eligible for relief under 3582(c)(2) due to his c a r e e r offender status, the proceedings in the district court did not involve the p o t e n t ia l for resentencing. Thus, appointment of counsel was not warranted u n d e r the interests of justice. Cf. United States v. Robinson, 542 F.3d 1045, 1052 (5 t h Cir. 2008) (appointing counsel in the interests of justice due to complexity o f 3582(c)(2) motion). Lewis has not shown error in either the denial of his 3582(c)(2) motion o r the denial of his request for counsel in the district court. Accordingly, the G o v e r n m e n t 's motion for summary affirmance is GRANTED and the judgment o f the district court is AFFIRMED. The Government's alternative motion ise D E N I E D as unnecessary. 2

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