USA v. Quentin Nelson

Filing

UNPUBLISHED OPINION FILED. [09-60803 Dismissed as moot ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 11/22/2010 [09-60803]

USA v. Quentin Nelson se: 09-60803 Ca

Document: 00511280956 Page: 1 Date Filed: 11/01/2010

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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 . 09-60803 S u m m a r y Calendar November 1, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. Q U E N T I N NELSON, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Northern District of Mississippi U S D C No. 4:96-CR-89-2

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. PER CURIAM:* Q u e n t in Nelson, federal prisoner # 10529-042, appeals the denial of his 18 U .S .C . § 3582(c)(2) motion for a sentence reduction based on the United States S e n te n c in g Commission's November 1, 2007 retroactive amendment to the base o ffe n s e levels for crack cocaine offenses. He contends that the district court erred in determining, based on the application notes accompanying

S e c tio n 1B1.10 of the Sentencing Guidelines, that he was ineligible for a r e d u c t io n of sentence because he was not serving his original term of
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-60803 Document: 00511280956 Page: 2 Date Filed: 11/01/2010 No. 09-60803 im p r is o n m e n t . He argues that the term of imprisonment imposed following the r e v o c a t io n of his supervised release is part of his original sentence and that, in a n y event, the district court erred in applying Section 1B1.10 and its a c c o m p a n y in g commentary as mandatory.1 S e c t io n 3582(c)(2) "permits a district court to reduce a term of im p r is o n m e n t when it is based upon a sentencing range that has subsequently b e e n lowered by an amendment to the Guidelines, if such a reduction is c o n s is t e n t with the policy statements issued by the Sentencing Commission." United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). The a p p lic a b le policy statement that is found in Section 1B1.10, prohibits a district c o u r t from reducing a term of imprisonment below the term of imprisonment the d e fe n d a n t has already served. U.S. Sentencing Guidelines Manual §

1 B 1 .1 0 (b )(2 )(C ). Moreover, a defendant is entitled to a reduction in his term of im p r is o n m e n t only if it was imposed as part of the original sentence. § 1B1.10, c m t . (n.4(A)). He may not obtain "a reduction in the term of imprisonment im p o s e d upon revocation of supervised release." Id. Nelson's argument that United States v. Booker, 543 U.S. 220 (2005), r e n d e r e d Section 1B1.10 advisory fails. This court previously ruled Booker did " n o t alter the mandatory character of Guideline § 1B1.10's limitations on s e n te n c e reductions." United States v. Doublin, 572 F.3d 235, 238 (5th Cir. 2 0 0 9 ). Accordingly, Nelson's arguments do not establish that the district court e r r e d in determining that it lacked the authority to reduce his sentence under S e c tio n 3582(c)(2). See Dillon v. United States, 130 S. Ct. 2683, 2692 (2010). A s Nelson has served his original custodial sentence, the Guidelines p r o h ib it any reduction in that sentence or the sentence Nelson received upon

Nelson also argues that Section 1B1.10, cmt. (n.4(A)) is unconstitutional and should not prohibit reduction of his revocation sentence because it is inconsistent with the definitions of supervised release in Chapter Seven of the Guidelines. As Nelson raised those issues for the first time in his reply brief, we will not consider them. See United States v. Jimenez, 509 F.3d 682, 693 n.10 (5th Cir. 2007).

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Case: 09-60803 Document: 00511280956 Page: 3 Date Filed: 11/01/2010 No. 09-60803 r e v o c a t io n of his supervised release. Because Nelson has no remaining s u p e r v is e d release term that may be modified or terminated, he can obtain no m e a n in g fu l relief from the courts. Nelson's appeal is moot. Accordingly, it is DISMISSED.

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