USA v. Grimaldo

Filing

UNPUBLISHED OPINION FILED. [09-40103 Affirmed] Judge: JLW , Judge: RHB , Judge: FPB. Mandate pull date is 11/24/2010 [09-40103]

USA v. Grimaldo

Case: 09-40103 Document: 00511283150 Page: 1 Date Filed: 11/03/2010

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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 . 09-40103 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 iff - Appellee v. T H O M A S ARTHUR GRIMALDO, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 3:01-CR-12-1

B e fo r e WIENER, BARKSDALE, and BENAVIDES, Circuit Judges. P E R CURIAM:* P r o c e e d in g pro se, Thomas Arthur Grimaldo, federal prisoner # 44990-079, a p p e a ls the denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction b a s e d on the crack-cocaine amendments to the Sentencing Guidelines. Section 3 5 8 2 provides a district court discretion to reduce a term of imprisonment if, in te r alia, the "sentencing range . . . has subsequently been lowered by" a m e n d m e n t to the Guidelines. 18 U.S.C. § 3582(c)(2).

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-40103 Document: 00511283150 Page: 2 Date Filed: 11/03/2010 No. 09-40103 A district court's decision on whether to reduce a sentence is reviewed for a b u s e of discretion; its interpretation of the Guidelines, de novo. United States v . Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010). Eligibility for a § 3582 reduction "is triggered only by an amendment . . . t h a t lowers the applicable guideline range". U.S.S.G. § 1B1.10, cmt. n.1A; see U n ite d States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). Due to t h e amount of crack-cocaine involved in Grimaldo's offense, his offense level was n o t reduced by the crack-cocaine amendments. Therefore, he is not eligible for a sentence reduction under § 3582. See § 1B1.10, cmt. n.1A; Gonzalez-Balderas, 1 0 5 F.3d at 984. G r im a ld o contends: the amended crack-cocaine Guideline conflicts with U n ite d States v. Booker, 543 U.S. 220 (2005), and impermissibly precludes the d is t r ic t court from considering the 18 U.S.C. § 3553(a) factors in reducing his s e n t e n c e below the Guidelines range of imprisonment; Booker prohibits a m a n d a t o r y application of the Guidelines; and an analysis of several § 3553(a) fa c t o r s , including his history, characteristics, and the nature and circumstances o f the offense, warrant a lower sentence. B o o k e r does not apply to a § 3582(c)(2) proceeding. Dillon v. United States, 1 3 0 S. Ct. 2683, 2691-94 (2010); United States v. Doublin, 572 F.3d 235, 238-39 (5 t h Cir.), cert denied, 130 S. Ct. 517 (2009). Accordingly, a § 3582 movant is e n tit le d , at most, to the reduction allowed by the amended Guidelines range; a s e n te n c in g court lacks discretion to reduce the sentence any further than a llo w e d by the amendments. Doublin, 572 F.3d at 238. Because Grimaldo is not e n tit l e d to a sentence reduction based on the crack-cocaine amendments, no r e lie f is available under § 3582. See Id. A F F IR M E D .

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