USA v. Gamboa

Filing

UNPUBLISHED OPINION FILED. [09-20066 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 11/29/2010; denying motion to file brief out of time filed by Appellant Mr. Edgar Mosquera Gamboa [6601592-2] [09-20066]

USA v. Gamboa

Case: 09-20066 Document: 00511286073 Page: 1 Date Filed: 11/05/2010

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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 . 09-20066 S u m m a r y Calendar November 5, 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. E D G A R MOSQUERA GAMBOA, 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 Southern District of Texas U S D C No. 4:93-CR-82-3

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* D e fe n d a n t-A p p e lla n t Edgar Mosquera Gamboa, federal prisoner

# 60512-079, was convicted of conspiring to possess with the intent to distribute m o r e than five kilograms of cocaine, possessing with the intent to distribute m o r e than five kilograms of cocaine, and money laundering. He appeals the d e n ia l of his 18 U.S.C. § 3582(c)(2) motion for modification of his sentence based o n three retroactive amendments to the Sentencing Guidelines. In his opening b r ie f, Gamboa challenges only the denial of relief under Amendment 505,
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-20066 Document: 00511286073 Page: 2 Date Filed: 11/05/2010 No. 09-20066 a lt h o u g h he moves for leave to file a reply brief (which he styles a traverse) out o f time to present additional claims. Issues not raised in an appellant's opening b r ie f, however, are deemed abandoned. Morgan v. Swanson, 610 F.3d 877, 884 n .1 0 (5th Cir. 2010). Section 3582(c)(2) permits the court to modify a defendant's sentence in s o m e instances when the Sentencing Commission lowers the applicable G u id e lin e s range of imprisonment after the defendant has been sentenced. See U n ite d States v. Doublin, 572 F.3d 235, 237 (5th Cir.), cert. denied, 130 S. Ct. 517 (2 0 0 9 ); U.S.S.G. § 1B1.10, comment. (n.1A). We review the district court's d e c is io n whether to reduce a sentence under § 3582(c)(2) for abuse of discretion, r e v ie w in g its application of the Guidelines de novo. United States v. Evans, 587 F .3 d 667, 672 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010). A m e n d m e n t 505 has no effect on Gamboa's Guidelines sentencing range. That amendment lowered from 42 to 38 the maximum base offense level for drug o ffe n s e s under U.S.S.G. § 2D1.1. U.S.S.G. App. C., amend. 505 (effective Nov. 1 , 1994); United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). Gamboa was held responsible for 392 kilograms of cocaine and accordingly r e c e iv e d a base offense level of 38, United States v. Gamboa, No. 94-20182, 1995 W L 534866, at *9 (5th Cir. Aug. 15, 1995), the same base offense level he would h a v e received under the new guideline, see U.S.S.G. § 2D1.1(c)(1). Gamboa also contends that as charged in the indictment, the crimes do not s u p p o r t the life sentences he received and that his counsel was ineffective. Section 3582(c)(2) is not the proper vehicle for Gamboa to raise these claims. A § 3582(c)(2) motion cannot be used to challenge the correctness of the original s e n te n c e . See United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995); see a ls o Evans, 587 F.3d at 674 (explaining that a § 3582(c)(2) motion is not the a p p r o p r ia te vehicle to raise challenges to the original sentencing proceeding).

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Case: 09-20066 Document: 00511286073 Page: 3 Date Filed: 11/05/2010 No. 09-20066 A c c o r d in g ly , the decision of the district court is AFFIRMED. Gamboa's m o t io n to file a reply brief out of time is DENIED.

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