USA v. Decarlos Brooks

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UNPUBLISHED OPINION FILED. [09-31196 Affirmed ] Judge: WG , Judge: ECP , Judge: CH Mandate pull date is 10/15/2010 [09-31196]

USA v. Decarlos Brooks

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Case: 09-31196

Document: 00511243450

Page: 1

Date Filed: 09/24/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-31196 S u m m a r y Calendar September 24, 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. D E C A R L O S BROOKS, 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 Western District of Louisiana U S D C No.5:05-CR-50074-1

B e fo r e GARWOOD, PRADO and HAYNES, Circuit Judges. P E R CURIAM:* D e c a r lo s Brooks, federal prisoner # 12873-035, appeals following the d i s t r i c t court's denial of his 18 U.S.C. § 3582(c)(2) motion and his motion for r e c o n s id e r a tio n of that denial. He argues the district court erred by denying him r e lie f based on the original presentence report and its finding that he was a c c o u n t a b le for 4.73 kilograms of crack cocaine. Brooks' PSR determined that "[t]he most conservative amount of crack c o c a in e . . . [attributable to Brooks] in this offense equals 4,730.5 grams or 4.73
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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k ilo g r a m s of crack cocaine." At the September 11, 2006 sentencing hearing the c o u r t considered and expressly rejected the defense objection that this c a lc u la t io n was wrong, although it also correctly remarked that the same u lt im a te guideline range (135 to 168 months) would be produced by 1.51 k ilo g r a m s of crack cocaine, as the district court expressly noted during the s e n te n c in g hearing. At the conclusion of the evidence and argument portion of t h e sentencing hearing, the district court stated: " I n this particular instance, the Court is going to adopt the fa c t u a l findings of the U.S. Probation Office as contained in the P r e s e n t e n c e Report and any addendum. T h e Court has previously found that the calculated amounts in the Presentence Report with respect to the offense conduct with r e s p e c t to the conspiracy are sufficiently borne out in fact through t h e testimony under oath by Mr. Porter, who was the supplier of Mr. B r o o k s ." T h e court then proceeded to sentence Brooks to 135 months' confinement fo llo w e d by four years supervised release. In its September 15, 2006 written s t a t e m e n t of reasons for sentencing, the court stated: "The court adopts the p r e s e n t e n c e investigation report without change." On Brooks' appeal,

c h a lle n g in g his sentence and the amount of crack cocaine attributable to him, w e affirmed. United States v. Brooks, No. 06-30993, 5th Circuit, May 9, 2007 (u n p u b lis h e d ). I n February 2008, and again in April 2008, Brooks moved in the district c o u r t for reduction of his sentence under 18 U.S.C. § 3582(c)(2) on the basis of g u id e lin e amendment 706, effective November 1, 2007, which amended g u id e lin e s § 2D1.1(c)(1) & (2) as to increase the amount of crack cocaine which u n d e r that section produced a sentencing base offense level of 38 from 1.5 KG (as i t was when Brooks was sentenced) to 4.5 KG, with 1.5KG now producing t h e r e u n d e r a base offense level of 36. Had the base offense level been 36, B r o o k s ' guideline range would have been 108 to 135 months. The district court in 2009 denied the motion, noting that the probation office had advised "that the 2

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t o t a l crack cocaine attributable to the Defendant . . . was 4.73 kilograms, which r e m a in s in the highest base offense level (38) established by the newly enacted g u id e lin e level for crack cocaine" and stating that "the Court finds that no r e d u c t io n in sentence . . . [under] § 3582(b)(2) is authorized . . . as the D e fe n d a n t 's base offense level under the newly enacted guideline level for crack c o c a in e remains at 38." Brooks timely moved for reconsideration, which motion t h e district court denied in a December 2009 order, stating that the court at s e n te n c in g did specifically "uphold the calculated findings of the crack cocaine s h o w n in the Presentence Report" which "specifically delineate[s] the quantity o f crack cocaine attributable to . . . [Brooks] as 4.73 kilograms." The court noted t h a t the "attempt to collaterally attack the factual basis underlying his original s e n te n c e is beyond the scope of . . . § 3582(c)," and it hence rejected Brooks' r e q u e s t for "a hearing to re-examine the exact amount of crack cocaine for which h e should be held responsible." It stated: "The original finding of the Court that Defendant was responsible fo r 4.73 kilograms of crack cocaine remains undisturbed, and the b a s e offense level (38) attributable to Defendant remains u n c h a n g e d . As such, Defendant is ineligible for a reduction in s e n t e n c e pursuant to 18 U.S.C. § 3582(c)." B r o o k s thereafter timely appealed. Section 3582(c)(2) permits the discretionary modification of a defendant's s e n t e n c e where the sentencing range is later lowered by the Sentencing C o m m is s io n . See § 3582(c)(2). The decision whether to reduce a sentence under § 3582(c)(2) is discretionary, and we review the denial of a section 3582 motion fo r an abuse of discretion. United States v. Boe, 117 F.3d 830, 831 (5th Cir. 1 9 9 7 ). Amendment 706 modified the guidelines' ranges applicable to crack c o c a in e offenses. See United States v. Burns, 526 F.3d 852, 861 (5th Cir. 2008). However, where the defendant was held accountable for 4.5 kilograms or more o f crack cocaine, Amendment 706 provides for no change in the guidelines' 3

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s e n te n c in g range. (n .1 0 (D )(ii)(I)). k ilo g r a m s or

See Supp. to App. C, Amend. 706; § 2D1.1, comment.

Accordingly, defendants who were held accountable for 4.5 more of crack cocaine are ineligible for relief under

s e c t io n 3582(c)(2). Since Brooks was found to be accountable for 4.73 kilograms o f crack cocaine, his offense level remains unchanged by the Amendment. Further, a section 3582(c)(2) movant is not entitled to have the district court r e c a lc u la t e his base offense level. See United States v. Whitebird, 55 F.3d 1007, 1 0 1 1 (5th Cir. 1995) (noting that a section 3582(c)(2) motion is not a challenge t o the appropriateness of the original sentence); see also United States v. R e y n o l d s , 2010 WL 1976573 (5th Cir. May 18, 2010) (unpublished); § 1 B 1 .1 0 (b )(1 ), p.s. (noting that a district court considering a reduction under s e c t io n 3582(c)(2) "shall leave all other guideline application decisions u n a ffe c te d ." ) . Thus, Brooks was not entitled to reconsideration of the finding t h a t he was accountable for 4.73 kilograms of crack cocaine. The district court d id not abuse its discretion in denying Brooks's motion. Boe, 117 F.3d at 831. A F F IR M E D .

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