USA v. James Jefferson

Filing

UNPUBLISHED OPINION ORDER FILED. [09-60391 Affirmed in Part, Vacated in Part and Remanded.] Judge: CDK , Judge: FPB , Judge: JWE Mandate pull date is 12/22/2010; denying motion to file brief out of time filed by Appellant Mr. James Edward Jefferson [6504979-2]; granting motion to proceed IFP filed by Appellant Mr. James Edward Jefferson, denying as unnecessary certificate of appealability as requested by Appellant Mr. James Edward Jefferson [6371575-2] [09-60391]

USA v. James Jefferson e: 09-60391 Cas

Document: 00511308751 Page: 1 Date Filed: 12/01/2010

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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 . 09-60391 S u m m a r y Calendar December 1, 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 EDWARD JEFFERSON, 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 Northern District of Mississippi U S D C No. 4:93-CR-21-1

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* J a m e s Edward Jefferson, federal prisoner # 09646-042, filed an 18 U.S.C. § 3582(c)(2) motion and two amended § 3582 motions for reduction of his s e n te n c e based on Sentencing Guideline Amendments 505, 516, 599, and 709. The federal public defender, on behalf of Jefferson, filed a § 3582 motion for r e d u c t io n of sentence based on Sentencing Guideline Amendment 706. The district court concluded that Jefferson was not eligible for relief under A m e n d m e n t 706 because his offense involved more than 4.5 kilograms of crack
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-60391 Document: 00511308751 Page: 2 Date Filed: 12/01/2010 No. 09-60391 c o c a in e . After Jefferson argued that the district court had not addressed his r e m a in in g claims as to Amendments 505, 516, 599, and 709, the district court c o n c lu d e d that these other claims constituted a 28 U.S.C. § 2255 motion. The d is t r ic t court then denied Jefferson's motion and denied a certificate of a p p e a la b ilit y (COA). Jefferson has filed a motion to proceed in forma pauperis (I F P ) on appeal. U n d e r 28 U.S.C. § 1915(a), a federal court may certify an appeal for IFP s t a t u s if the appeal is taken in good faith. "Good faith is demonstrated when a p a r ty seeks appellate review of any issue not frivolous." Howard v. King, 707 F .2 d 215, 220 (5th Cir. 1983) (internal quotation marks and citation omitted). This court's inquiry into the prisoner's good faith "is limited to whether the a p p e a l involves `legal points arguable on their merits (and therefore not fr iv o lo u s ).'" Id. (citation omitted); see also Baugh v. Taylor, 117 F.3d 197, 202 (5 t h Cir. 1997). Probable success on the merits is not required. Howard, 707 F .2 d at 220. Jefferson alleges that the district court abused it discretion when it denied h is § 3582 motion. Specifically, Jefferson argues that the district court erred w h e n its order, which denied him a reduction in his sentence, addressed only A m e n d m e n t 706 and failed to address Amendments 505, 516, 599, and 709. Additionally, liberally construing Jefferson's argument that the district court e r r e d when it failed to consider his § 3582 motion, see Haines v. Kerner, 404 U.S. 5 1 9 , 519-20 (1972), Jefferson argues that the district court erred when it c o n s t r u e d Jefferson's § 3582 motion as a § 2255 motion. S e c t io n 3582(c)(2) permits the discretionary reduction of a defendant's s e n t e n c e where the applicable sentencing range is later lowered by the S e n t e n c in g Commission. See § 3582(c)(2); United States v. Doublin, 572 F.3d 2 3 5 , 237 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). A district court's decision w h e t h e r to reduce a sentence is reviewed for an abuse of discretion, and its in t e r p r e t a t io n of the Guidelines is reviewed de novo. Id. 2

Case: 09-60391 Document: 00511308751 Page: 3 Date Filed: 12/01/2010 No. 09-60391 J e ffe r s o n correctly argues that the district court erred when it treated his § 3582 motion as a § 2255 motion. Jefferson's pleadings alleged that he was e n tit le d to a modification of his sentence as a result of retroactive amendments t o certain sentence guidelines that lowered his applicable sentencing guidelines r a n g e . These allegations were correctly presented to the district court in § 3582 m o t io n s . See § 3582(c)(2); United States v. Gonzalez-Balderas, 105 F.3d 981, 9 8 2 (5th Cir. 1997). Under the law of the case doctrine, Jefferson's claims concerning A m e n d m e n t s 505 and 516 are barred from consideration, as they were presented t o the district court in a § 3582 motion filed in 1997. United States v. Matthews, 3 1 2 F.3d 652, 657 (5th Cir. 2002). In his brief to this court, Jefferson has not c h a lle n g e d the reasons for the district court's denial of § 3582 relief based on A m e n d m e n t 706. Any claims regarding Amendment 706 are therefore deemed a b a n d o n e d . Brinkmann v. Dallas County Sheriff Abner, 813 F.2d 744, 748 (5th C ir . 1987). As for Jefferson's claims regarding sentencing enhancements and the drug a m o u n t not being determined by a jury, these claims are not based on a r e t r o a c t iv e amendment to the Sentencing Guidelines and are therefore not c o g n iz a b le under § 3582. United States v. Whitebird, 55 F.3d 1007, 1011 (5th C ir . 1995); United States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994). Regarding J e ffe r s o n 's assertion that the district court erred by failing to allow him to object t o the addendum to the Presentence Report (PSR), Jefferson has not established t h a t a PSR addendum was created in response to his § 3582 motions, much less t h a t the district court considered an addendum without providing him with n o tic e and an opportunity to respond. Accordingly, IT IS ORDERED that Jefferson is GRANTED IFP; that J e ffe r s o n 's motion for leave to file an out-of-time reply brief is DENIED; that a c e r t ific a t e of appealability is DENIED AS UNNECESSARY; that the denial of J e ffe r s o n 's § 3582 motion as to Sentencing Guideline Amendment 706 is 3

Case: 09-60391 Document: 00511308751 Page: 4 Date Filed: 12/01/2010 No. 09-60391 A F F IR M E D ; that the order construing Jefferson's § 3582 motion as a § 2255 m o t io n is VACATED; that the matter is REMANDED for consideration of J e ffe r s o n 's § 3582 motion regarding Sentencing Guideline Amendments 599 and 7 0 9 ; and that any claims regarding Sentencing Guideline Amendments 505 and 5 1 6 need not be considered on remand.

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