USA v. Baron Pinson

Filing

UNPUBLISHED OPINION FILED. [09-20323 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 01/11/2011; denying motion to appoint counsel filed by Appellant Mr. Baron Veradell Pinson [6290738-2] [09-20323]

USA v. Baron Pinson ase: 09-20323 C

Document: 00511328514 Page: 1 Date Filed: 12/21/2010

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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 . 09-20323 S u m m a r y Calendar December 21, 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. B A R O N VERADELL PINSON, 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. 4:96-CR-208-1

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* B a r o n Veradell Pinson, federal prisoner # 75029-079, is serving a 360m o n th term of imprisonment for conspiring to possess with the intent to d is t r ib u t e cocaine base and possessing with the intent to distribute cocaine base. He appeals the district court's denial of his 18 U.S.C. § 3582(c)(2) motion for a r e d u c t io n of sentence based on the retroactive amendments to U.S.S.G. § 2D1.1, t h e Sentencing Guideline for crack cocaine offenses. He also appeals the denial

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-20323 Document: 00511328514 Page: 2 Date Filed: 12/21/2010 No. 09-20323 o f his motion for the appointment of appellate counsel. a p p o in tm e n t of counsel in this court. A t Pinson's original sentencing, the district court found he was a career o ffe n d e r . However, Pinson was sentenced under § 2D1.1 because his career o ffe n d e r offense level of 37 did not exceed the adjusted offense level of 38 that r e s u lt e d from the quantity of drugs involved in the offense. Under amended § 2D1.1, Pinson's total offense level is 36, but his status as a career offender m a n d a t e s an offense level of 37. U.S.S.G. § 4B1.1(b). With a criminal history c a t e g o r y of VI, his sentencing range remains unchanged at 360 months to life im p r is o n m e n t . If application of an amendment reduces a defendant's base o ffe n s e level but does not alter the sentencing guideline range on which his s e n te n c e was based, § 3582(c)(2) does not authorize a reduction in sentence. § 1B1.10(a)(2)(B), p.s. The district court did not err in denying Pinson's motion. § 1B1.10(a), p.s.; United States v. Anderson, 591 F.3d 789, 790-91 (5th Cir. 2009). P in son 's argument that United States v. Booker, 543 U.S. 220 (2005), made a p p lic a t io n of § 1B1.10 advisory is foreclosed. See Dillon v. United States, 130 S . Ct. 2683, 2692 (2010); United States v. Doublin, 572 F.3d 235, 238 (5th Cir.), c e r t. denied, 130 S. Ct. 517 (2009). Pinson has provided no support for his a r g u m e n t that the district court erred by denying his motion without requiring t h e Government to respond and without ordering a new presentence report. Pinson's challenges to the district court's original sentencing decisions are not c o g n iz a b le in his § 3582(c)(2) motion. See United States v. Whitebird, 55 F.3d 1 0 0 7 , 1010-1011 (5th Cir. 1995). F in a lly , the district court did not err in denying Pinson's motion for the a p p o in tm e n t of appellate counsel. This court has previously held that there is n o right to counsel at a § 3582(c)(2) proceeding. Id. at 1010-11. However, more r e c e n tly , this court has suggested that "[t]he question . . . of whether a § 3 5 8 2 (c )(2 ) motion triggers either a statutory or constitutional right to an a t t o r n e y -- in either this court or the district court--is a different question now 2 He requests the

Case: 09-20323 Document: 00511328514 Page: 3 Date Filed: 12/21/2010 No. 09-20323 t h a n it was before the [2008] amendments to U.S.S.G. § 1B1.10(b)," because t h o s e amendments allow district courts to exercise discretion in a § 3582(c)(2) p r o c e e d in g , whereas previously they had no discretion. R o b in s o n , 542 F.3d 1045, 1052 (5th Cir. 2008).1 United States v.

Nonetheless, in this case,

b e c a u s e Pinson is simply ineligible for a sentence reduction under § 3582(c)(2), t h e district court did not have any discretion to reduce his sentence. Accordingly, we conclude that under Whitebird, Pinson was not entitled to c o u n s e l. T h e judgment of the district court is AFFIRMED. Pinson's motion for the a p p o in tm e n t of appellate counsel is DENIED.

U.S.S.G. § 1B1.10(b) lays out the sentencing procedure to be followed in § 3582(c)(2) hearings. The changes noted in Robinson are at U.S.S.G. § 1B1.10 cmt. n.1(B), which allows district courts to exercise discretion in determining "the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant's term of imprisonment" as well as the "post-sentencing conduct of the defendant that occurred after imposition of the original imprisonment." Robinson, 542 F.3d at 1052 (quoting U.S.S.G. § 1B1.10 cmt. n.1(B)(ii) and (iii)).

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