USA v. Mary McBride

Filing

UNPUBLISHED OPINION FILED. [09-60392 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 12/13/2010 [09-60392]

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USA v. Mary McBride ase: 09-60392 C Document: 00511300609 Page: 1 Date Filed: 11/22/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-60392 S u m m a r y Calendar November 22, 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 , versu s M A R Y MCBRIDE, 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 N o . 4:93-CR-21-5 B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* M a r y McBride, federal prisoner # 09801-042, moved under 18 U.S.C. 3582(c)(2) for reduction of sentence based on Amendments 503, 505, 516, and 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Dockets.Justia.com Case: 09-60392 Document: 00511300609 Page: 2 Date Filed: 11/22/2010 No. 09-60392 7 0 6 to the sentencing guidelines. The district court concluded that McBride was n o t eligible for relief under Amendment 706 because her offense involves more t h a n 4.5 kilograms of crack cocaine. After McBride argued that the court had n o t addressed her remaining claims, the court concluded that those claims cons t it u t e d an unauthorized successive 28 U.S.C. 2255 motion. McBride appeals t h e denial of relief. S e c t io n 3582(c)(2) permits the discretionary reduction of a sentence where t h e applicable range is later lowered by the Sentencing Commission. See 3582(c )(2 ); United States v. Doublin, 572 F.3d 235, 237 (5th Cir.), cert. denied, 130 S. C t . 517 (2009). A district court's decision whether to reduce a sentence is rev ie w e d for abuse 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. 3 4 6 2 (2010). M c B r id e contends that, in light of Kimbrough v. United States, 552 U.S. 8 5 , 104-05 (2007), the district court abused its discretion by denying relief on her A m e n d m e n t 706 claim because she should have been sentenced using a 1 to 1 c r a c k -to -p o w d e r -c o c a in e ratio. Her brief does not address the reasons for denyin g relief. Although a pro se brief is afforded liberal construction, see Haines v. K e r n e r , 404 U.S. 519, 520 (1972), where an appellant fails to identify error in the d is t r ic t court's analysis, it is the same as if he had not appealed that issue. Brinkmann v. Dallas Cnty. Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Arguments must be briefed to be preserved. Yohey v. Collins, 985 F.2d 222, 2 2 4 -2 5 (5th Cir. 1983). McBride's claim based on Amendment 706 is deemed a b a n d o n e d . See Brinkmann, 813 F.2d at 748. M c B r id e urges that the district court erred by failing to address her claims fo r a reduction based on Amendments 503 and 505. Again, McBride has failed t o address the reasons for the denial of 3582(c)(2) relief on those claims. Bec a u s e she has failed to identify error in the district court's analysis, it is the Case: 09-60392 Document: 00511300609 Page: 3 Date Filed: 11/22/2010 No. 09-60392 s a m e as if she had not appealed that issue. Brinkmann, 813 F.2d at 748; Yohey, 9 8 5 F.2d at 224-25. Therefore, her claims based on Amendments 503 and 505 a r e deemed abandoned. See Brinkmann, 813 F.2d at 748. M c B r id e maintains that the district court erred by failing to allow her to o b je c t to the addendum to the presentence report. See United States v. Mueller, 1 6 8 F.3d 186, 189 (5th Cir. 1999). There is no indication in the record that the c o u r t considered any addendum that was prepared in response to her 3582(c )(2 ) motion. McBride also argues that the court imposed an illegal sentence, b e c a u s e the drug amount attributed to her was not found by the jury. But, "[a] 3582(c)(2) motion is not a second opportunity to present mitigating factors to t h e sentencing judge, nor is it a challenge to the appropriateness of the original s e n te n c e ." United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995). A F F IR M E D .

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