USA v. Rodrick Russell

Filing

UNPUBLISHED OPINION FILED. [09-40631 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 11/19/2010; granting motion for summary affirmance filed by Appellee USA [6361158-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [6361158-3] [09-40631]

USA v. Rodrick Russell se: 09-40631 Ca

Document: 00511279226 Page: 1 Date Filed: 10/29/2010

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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 . 09-40631 S u m m a r y Calendar October 29, 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. R O D R I C K CHAD RUSSELL, 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. 1:07-CR-180-1

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* R o d r ic k Chad Russell, federal prisoner # 13708-078, appeals the district c o u r t's denial of his motion pursuant to 18 U.S.C. § 3582(c)(2) to reduce his s e n te n c e for possession with intent to distribute five grams or more of cocaine b a se. The Government has moved for summary affirmance or, in the

a lt e r n a t iv e , for an extension of time to file a brief. R u s s e ll argues that the district court abused its discretion in failing to r e d u c e his sentence by two levels under the November 1, 2007, crack cocaine
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-40631 Document: 00511279226 Page: 2 Date Filed: 10/29/2010 No. 09-40631 a m e n d m e n t s to the Sentencing Guidelines, including Amendment 706. However, Russell was sentenced pursuant to Amendments 706 and 711, both of w h ic h became effective on November 1, 2007, before his sentencing. Additionally, to the extent that Russell's argument is liberally construed to c o n t e n d that his sentence should be reduced under Amendment 715, which b e c a m e effective on November 1, 2008, the application of the amendment would n o t have affected his guidelines range, and thus he is not entitled to a sentence r e d u c t io n pursuant to § 3582(c)(2) on this basis. See United States v. Doublin, 5 7 2 F.3d 235, 237 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009); U.S.S.G. § 1B1.10(a), p.s. L ib e r a lly construed, Russell's brief also argues that the drug quantity for w h ic h he was held accountable and the two-level increase in his offense level p u r s u a n t to U.S.S.G. § 2D1.1(b)(1) were erroneously based on charges that were la t e r dismissed and were calculated in violation of United States v. Booker, 543 U .S . 220 (2005), based on facts that were not charged in the indictment. However, a motion under § 3582(c)(2) "is not a second opportunity to present m it ig a t in g factors to the sentencing judge, nor is it a challenge to the a p p r o p r ia te n e s s of the original sentence." United States v. Whitebird, 55 F.3d 1 0 0 7 , 1011 (5th Cir. 1995). Furthermore, this court has recognized that Booker d id not alter the mandatory character of § 1B1.10's limitations on sentence r e d u c t io n s . See Doublin, 572 F.3d at 238. Therefore, these claims are not c o g n iz a b le in a § 3582(c)(2) motion. See Whitebird, 55 F.3d at 1011; United S ta te s v. Evans, 587 F.3d 667, 674 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2 0 1 0 ). In light of the foregoing, Russell has not shown that the district court a b u s e d its discretion in denying his § 3582(c)(2) motion. See Evans, 587 F.3d at 6 7 2 . The motion for summary affirmance is GRANTED, the judgment of the d is t r ic t court is AFFIRMED, and the Government's alternative motion for an e x t e n s io n of time is DENIED as unnecessary. 2