USA v. Cedric Catlin


UNPUBLISHED OPINION FILED. [09-40361 Affirmed] Judge: TMR , Judge: JLD , Judge: EBC. Mandate pull date is 01/07/2011; granting motion for summary affirmance filed by Appellee USA [6337136-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [6337136-3] [09-40361]

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USA v. Cedric CatlinCase: 09-40361 Document: 00511326153 Page: 1 Date Filed: 12/17/2010 Doc. 0 REVISED December 17, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit N o . 09-40361 S u m m a r y Calendar FILED December 17, 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. C E D R I C CATLIN, 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. 4:01-CR-32-1 B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* C e d r ic Catlin, federal prisoner # 09269-078, appeals the district court's d e n ia l of his motion for a sentence reduction pursuant to 18 U.S.C. 3582(c)(2). Catlin was convicted of conspiracy and distribution of crack cocaine. He was h e ld accountable for 8.095 kilograms of cocaine base and sentenced to concurrent p r is o n terms of 324 and 240 months. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 09-40361 Document: 00511326153 Page: 2 Date Filed: 12/17/2010 No. 09-40361 I n the instant appeal, Catlin argues that the district court appointed the F e d e r a l Public Defender (FPD) to represent him in connection with his 3 5 8 2 (c )(2 ) proceeding and then denied a sentence reduction before the FPD made a n appearance; that the district court violated his Sixth Amendment right to c o u n s e l; that he was denied the right to be heard and the opportunity to file a p o s it io n paper; and that, in denying his motion, the district court failed to c o n s id e r the unjustness of the disparity in punishments between powder and c r a c k cocaine offenses. He further suggests that the district court improperly fa ile d to consider a sentence reduction under 3582(c)(2) in light of United S ta te s v. Booker, 543 U.S. 220 (2005), Kimbrough v. United States, 552 U.S. 85 (2 0 0 7 ), and the 18 U.S.C. 3553(a) factors. Section 3582(c)(2) allows a district court to reduce a term of imprisonment t h a t was "based on a sentencing range that has subsequently been lowered by" a n amendment to the Sentencing Guidelines. Eligibility for a 3582(c)(2) r e d u c t io n "is triggered only by an amendment . . . that lowers the applicable g u id e li n e range." U.S.S.G. 1B1.10 cmt. n.1(A); see United States v. G o n z a le z -B a ld e r a s , 105 F.3d 981, 982 (5th Cir. 1997). In this instance, due to t h e amount of crack cocaine involved, Catlin's offense level was not reduced by t h e crack cocaine amendment of 2007. Therefore, he was not eligible for a s e n te n c e reduction under 3582(c)(2). See U.S.S.G. 1B1.10 cmt. n.1(A). L ik e w is e unavailing is Catlin's argument that, based upon Booker, K im b r o u g h , 552 U.S. at 98-101, and the 3553(a) sentencing factors, the district c o u r t should have reduced his sentence. See Dillon v. United States, 130 S. Ct. 2 6 8 3 , 2691-94 (2010); United States v. Doublin, 572 F.3d 235, 237-39 (5th Cir.), c e r t. denied, 130 S. Ct. 517 (2009). A movant under 3582(c)(2) is entitled at m o s t to the reduction allowed by the amended guidelines range, and a s e n te n c in g court lacks discretion to reduce the sentence any further than that a llo w e d by the amendment. Doublin, 572 F.3d at 237-38. Because Catlin was 2 Case: 09-40361 Document: 00511326153 Page: 3 Date Filed: 12/17/2010 No. 09-40361 n o t entitled to a sentence reduction based on the crack amendment, no relief is a v a ila b le under 3582(c)(2). See id. A lt h o u g h Catlin argues that the district court appointed the FPD to r e p r e s e n t him and then denied his 3582(c)(2) motion before the FPD's a p p e a r a n c e , the document to which Catlin refers in support of this argument r e fe r e n c e s the court's appointment of the FPD for one of his codefendants. Catlin's related argument that the district court violated his Sixth Amendment r ig h t to counsel also fails. This court has previously held that there is no right t o counsel at a 3582(c)(2) proceeding. United States v. Whitebird, 55 F.3d 1 0 0 7 , 1010-11 (5th Cir. 1995). However, more recently, this court has suggested t h a t "[t]he question . . . of whether a 3582(c)(2) motion triggers either a s t a t u t o r y or constitutional right to an attorney--in either this court or the d is t r ic t court--is a different question now than it was before the [2008] a m e n d m e n t s to U.S.S.G. 1B1.10(b)," because the amendments allow district c o u r ts to exercise discretion in a 3582(c)(2) proceeding, where previously they h a d none. United States v. Robinson, 542 F.3d 1045, 1052 (5th Cir. 2008).1 N o n e t h e le s s , because Catlin was not even eligible for a sentence reduction under 3582(c)(2), we conclude that the district court did not need to exercise d is c r e t io n to deny his motion, and thus he was not entitled to counsel. Finally, Catlin filed a 15-page motion and memorandum in support of his r e q u e s t for a sentence reduction, and was thus afforded an opportunity to make h is views known to the district court. Regarding the right to be heard, Catlin w a s not entitled to be present at a hearing in connection with his 3582(c)(2) p r o c e e d in g . See Fed. R. Crim. P. 43(b)(4); see also United States v. Patterson, 42 U.S.S.G. 1B1.10(b) lays out the sentencing procedures 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 term of imprisonment." 542 F.3d at 1052 (quoting U.S.S.G. 1B1.10 cmt. n.1(B)(ii) and (iii)). 1 3 Case: 09-40361 Document: 00511326153 Page: 4 Date Filed: 12/17/2010 No. 09-40361 F .3 d 246, 248-49 (5th Cir. 1994) (holding that a defendant does not have the r ig h t to a hearing when the district court merely modifies an existing sentence, r a t h e r than imposing a new sentence after the original sentence has been set a s id e ). More recently, in unpublished opinions, this court has held that an e v id e n t ia r y hearing is generally only required in a 3582(c)(2) proceeding if a fa c t u a l dispute exists. United States v. Edwards, No. 97-60326, 1998 WL 546471 a t *3 (5th Cir. Aug. 6, 1998) (unpublished); see United States v. Jones, 370 F. A p p 'x 477, 478 (5th Cir. 2010) (unpublished), petition for cert. filed (June 10, 2 0 1 0 ) (No. 09-11346) (finding no entitlement to hearing due to the absence of a fa c t u a l dispute). Here, Catlin has not identified any factual dispute n e c e s s it a t in g an evidentiary hearing. Moreover, because the district court could n o t have granted a sentence reduction, any error resulting from the failure to p r o v id e a hearing was harmless. See Fed. R. Crim. P. 52(a); United States v. B u h l, 313 F. App'x 717, 718 (5th Cir. 2009) (unpublished) (holding that any p r o c e d u r a l error in denying the defendant's 3582(c)(2) motion was harmless b e c a u s e the defendant was not eligible for a sentence reduction). The Government's motion for summary affirmance is GRANTED, and the ju d g m e n t of the district court is AFFIRMED. The Government's alternative m o t io n for an extension of time to file a brief is DENIED. 4

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