USA v. Derrick Moore


UNPUBLISHED OPINION FILED. [10-10149 Vacated and Remanded] Judge: EGJ , Judge: EMG , Judge: CES. Mandate pull date is 01/12/2011 [10-10149]

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USA v. Derrick Moore ase: 10-10149 C Document: 00511329732 Page: 1 Date Filed: 12/22/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-10149 S u m m a r y Calendar December 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 v. D E R R I C K MOORE, also known as Black, 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 Texas U S D C No. 4:02-CR-174-14 B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* D e r r ic k Moore, federal prisoner # 29110-177, appeals the district court's d e n ia l of his second motion to reduce his sentence pursuant to 18 U.S.C. 3582(c)(2). Moore's 3582(c)(2) motion was based upon Amendment 706 to the U n ited States Sentencing Guidelines, which lowered the guidelines offense levels fo r crack cocaine offenses. Moore is serving a 140-month sentence for a c o n s p ir a c y conviction in violation of 21 U.S.C. 846 and 841(a)(1) & (b)(1). 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10149 Document: 00511329732 Page: 2 Date Filed: 12/22/2010 No. 10-10149 M o o r e argues that he is eligible for a sentence reduction because his o ffe n s e involved crack cocaine, that he was entitled to a hearing in the district c o u r t, and that the district court erred in failing to appoint him counsel in c o n n e c t io n with his 3582(c)(2) proceeding. Moore was not entitled to a hearing in the district court, see FED. R. CRIM. P. 43(b)(4); United States v. Patterson, 4 2 F.3d 246, 248-49 (5th Cir. 1994); and there was no plain error in the failure o f the district court to appoint counsel for Moore sua sponte, see United States v . Hereford, No. 08-10452, 2010 WL 2782780, *1 (5th Cir. July 12, 2010); United S ta te s v. Whitebird, 55 F.3d 1007 (5th Cir. 1995). S e c t io n 3582 permits a defendant to move, under certain circumstances, fo r discretionary modification of his sentence if it was based on a sentencing r a n g e that the Sentencing Commission later lowered. 3582(c)(2); United States v . Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). Amendment 706 a p p lies to those whose sentences were determined by calculating their guidelines o ffe n s e levels in accordance with the pertinent Guideline for crack cocaine, i.e., c o c a in e base. See United States v. Burns, 526 F.3d. 852, 861 (5th Cir. 2008). T h e district court denied Moore relief under 3582(c)(2) based upon a fin d in g that his offense involved powder cocaine and not crack cocaine. Thus, the d is t r ic t court concluded that Moore was ineligible for a 3582(c)(2) sentence r e d u c t io n based upon Amendment 706. T h e second addendum to Moore's presentence report (PSR) makes clear, h o w e v e r , that Moore's sentence was calculated based solely upon a quantity of c o c a in e base. Accordingly, the district court's judgment is VACATED, and the c a s e is REMANDED to the district court for consideration of Moore's 3582(c)(2) m o t io n in light of the second addendum to the PSR. 2

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