USA v. Ortega

Filing

UNPUBLISHED OPINION FILED. [09-40080 Affirmed] Judge: CDK , Judge: FPB , Judge: JWE. Mandate pull date is 01/03/2011; denying motion to appoint counsel filed by Appellant Mr. James Dwayne Ortega [6277739-3], denying motion to appoint counsel filed by Appellant Mr. James Dwayne Ortega [6229492-2]; granting motion for summary affirmance filed by Appellee USA [6263001-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [6263001-3]; denying motion for production of documents filed by Appellant Mr. James Dwayne Ortega [6254598-2] [09-40080]

USA v. Ortega

Case: 09-40080 Document: 00511319569 Page: 1 Date Filed: 12/13/2010

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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 . 09-40080 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. J A M E S DWAYNE ORTEGA, also known as Fat Boy, 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 Eastern District of Texas U S D C No. 4:98-CR-14-21

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* J a m e s Dwayne Ortega, federal prisoner # 07046-078, appeals the district c o u r t's denial of relief on his motion for a reduction of sentence under 18 U.S.C. § 3582(c)(2). Ortega was convicted on drug-related counts, including a charge t h a t he conspired to possess with the intent to distribute over seven kilograms o f crack cocaine and other controlled substances. Ortega was sentenced to 292 m o n th s of imprisonment on the above conspiracy count. This court affirmed

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-40080 Document: 00511319569 Page: 2 Date Filed: 12/13/2010 No. 09-40080 O r t e g a 's convictions and sentences. United States v. Hernandez, No. 98-41246, 2 0 0 1 WL 650227, at *11 (5th Cir. May 24, 2001). I n challenging the district court's denial of his § 3582(c)(2) motion, Ortega c o n t e n d s that the district court had the authority to reduce his sentence p u r s u a n t to the retroactive amendments to the Sentencing Guidelines c o n c e r n in g crack cocaine. He disputes the determinations made at sentencing a s to the quantity of crack cocaine involved in the conspiracy, and he argues that t h e district court erred in denying relief without conducting an evidentiary h e a r in g . Ortega asserts that the Government conceded error as to the

d e t e r m in a t io n of drug quantity in his direct appeal. He also maintains that U n ite d States v. Booker, 543 U.S. 220 (2005), is applicable to § 3582(c)(2) p r o c e e d in g s . Ortega moves for appointment of counsel on appeal and for the p r o d u c t io n of certain documents. E ffe c t iv e November 1, 2007, the United States Sentencing Commission (" t h e Commission") adopted Amendment 706, which modified the guidelines r a n g e s applicable to crack cocaine offenses to reduce the disparity between crack c o c a in e and powder cocaine sentences. U.S.S.G. Supp. to App'x C, Amend. 706 (N o v . 1, 2009); see United States v. Burns, 526 F.3d 852, 861 (5th Cir. 2008). The g e n e r a l effect of Amendment 706 is to decrease by two levels the base offense l e v e ls for crack cocaine offenses. See Burns, 526 F.3d at 861. In addition, e ffe c t iv e May 1, 2008, the Sentencing Commission enacted Amendment 715, w h ic h modified the commentary to § 2D1.1 of the Guidelines to revise the m a n n e r in which combined offense levels are determined in cases involving c o c a in e base and one or more other controlled substance. U.S.S.G. Supp. to A p p 'x C, Amend. 715. Pursuant to Amendment 715, the two-level reduction for o ffe n s e s involving crack cocaine does not apply in a case where "the offense in v o lv e d 4.5 kg or more, or less than 250 mg, of cocaine base." Id., Amend. 715. A t Ortega's sentencing hearing, the district court expressly adopted the drug q u a n t it y determinations set forth in the Presentence Report, which found that 2

Case: 09-40080 Document: 00511319569 Page: 3 Date Filed: 12/13/2010 No. 09-40080 O r t e g a was accountable for 32.5 kilograms of crack cocaine. In his direct appeal, O r t e g a challenged the amount of drugs attributable to him for sentencing p u r p o s e s , and this court rejected his arguments. Hernandez, 2001 WL 650227, a t *2 n.1, 9-10. Ortega may not relitigate the issue of drug quantity in a

§ 3582(c)(2) motion. See United States v. Evans, 587 F.3d 667, 674 (5th Cir. 2 0 0 9 ), cert. denied, 130 S. Ct. 3462 (2010); United States v. Shaw, 30 F.3d 26, 29 (5 t h Cir. 1994). As there was no cognizable factual dispute, the district court did n o t err in denying relief without conducting an evidentiary hearing. See Dickens v . Lewis, 750 F.2d 1251, 1255 (5th Cir. 1984). C o n t r a r y to Ortega's assertion, Booker is not applicable in § 3582(c)(2) p r o c e e d in g s . See Dillon v. United States, 130 S. Ct. 2683, 2691-94 (2010); United S ta te s v. Doublin, 572 F.3d 235, 237-39 (5th Cir.), cert. denied, 130 S. Ct. 517 (2 0 0 9 ). Additionally, there is no right to appointed counsel in a § 3582(c)(2) p r o c e e d in g . United States v. Whitebird, 55 F.3d 1007, 1010-11 (5th Cir. 1995); U n ite d States v. Hereford, No. 08-10452, 2010 WL 2782780, at *1-2 (5th Cir. July 1 2 , 2010). Moreover, the interest of justice did not require the appointment of c o u n s e l because Ortega's § 3582(c)(2) motion did not involve complicated or u n r e s o lv e d issues. Cf. United States v. Robinson, 542 F.3d 1045, 1052 (5th Cir. 2 0 0 8 ) . The district court therefore did not err by denying Ortega's motion for a p p o in tm e n t of counsel, and we decline to appoint counsel on appeal for the s a m e reasons. I n view of the foregoing, the judgment of the district court is AFFIRMED, t h e Government's motion for summary affirmance is GRANTED, and the G o v e r n m e n t 's alternate request for an extension of time to file a brief is D E N I E D . Ortega's motion for the appointment of counsel on appeal is DENIED, a n d his motion for the production of documents is DENIED.

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