USA v. Damiene Mile

Filing

UNPUBLISHED OPINION FILED. [10-30302 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 12/30/2010 [10-30302]

USA v. Damiene Mile ase: 10-30302 C

Document: 00511317171 Page: 1 Date Filed: 12/09/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-30302 S u m m a r y Calendar December 9, 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 A M IE N E MILES, also known as Damiane Miles, also known as Dope Fiend, 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 Western District of Louisiana U S D C No. 5:99-CR-50071-4

B e fo r e DAVIS, SMITH and SOUTHWICK, Circuit Judges. P E R CURIAM:* D a m ie n e Miles, federal prisoner # 10335-035, was convicted of conspiracy t o possess with intent to distribute and aid and abet the possession with intent t o distribute five grams or more of crack cocaine. He appeals the district court's d e n ia l of his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence. The district c o u r t's decision whether to reduce a sentence pursuant to § 3582(c)(2) is r e v ie w e d for abuse of discretion, while its interpretation or application of the

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-30302 Document: 00511317171 Page: 2 Date Filed: 12/09/2010 No. 10-30302 G u id e lin e s is reviewed de novo. United States v. Evans, 587 F.3d 667, 672 (5th C ir . 2009), cert. denied, 130 S. Ct. 3462 (2010). M ile s argues that the district court committed reversible error by denying h is § 3582(c)(2) motion. He maintains that the sentencing court never made any e x p r e s s findings regarding the quantity of crack cocaine attributable to him, s p e c ific a lly whether Miles was responsible for 20 of the 22 kilograms of crack c o c a in e attributed to him in the presentence report (PSR). Miles also argues t h a t the district court abused its discretion in denying his request for an e v id e n t ia r y hearing on the issue of drug quantity. S e c t io n 3582(c)(2) permits the discretionary modification of a defendant's s e n te n c e only where the defendant's sentencing range is actually lowered by the S e n te n c in g Commission. See § 3582(c)(2). Here, the sentencing court explicitly a d o p t e d the facts and conclusions in the PSR, including the finding that Miles w a s responsible for at least 22 kilograms of crack cocaine. Accordingly, because M ile s was accountable for more than 4.5 kilograms of cocaine base, he was in e lig ib le for a sentence reduction based upon the crack cocaine amendments. See U.S.S.G. Supp. to App'x C, Amend. 706; § 2D1.1(c)(1) & comment. (n . 10(D)(ii)). His base offense level consequently was not modified, and his a d v is o r y guidelines range was not lowered as a result of the amendments. Thus, t h e district court did not err in determining that Miles was ineligible for a s e n te n c e reduction under § 3582(c)(2). See Evans, 587 F.3d at 672. T o the extent that Miles challenges the calculation of the relevant drug q u a n t it y at his initial sentencing, that issue is beyond the scope of the guidelines a m e n d m e n t and is not cognizable in a § 3582(c)(2) proceeding. See

§ 1B1.10(a)(3), (b)(1); see also United States v. Doublin, 572 F.3d 235, 237 (5th C ir . ) (observing that § 1B1.10 is made mandatory by § 3582), cert. denied, 130 S . Ct. 517 (2009); Evans, 587 F.3d at 674 ("A § 3582(c)(2) motion is not the a p p r o p r ia te vehicle for raising [issues related to the original sentencing].") (in t e r n a l quotation marks and citation omitted). Additionally, Miles' argument 2

Case: 10-30302 Document: 00511317171 Page: 3 Date Filed: 12/09/2010 No. 10-30302 t h a t the issue preclusion standard discussed in Bobby v. Bies, 129 S. Ct. 2145, 2 1 5 2 (2009), should be applied in his case is unavailing. L a s t ly , the district court did not abuse its discretion in denying Miles's m o t io n for a reduction in sentence without conducting an evidentiary hearing. See Dickens v. Lewis, 750 F.2d 1251, 1255 (5th Cir. 1984). A F F IR M E D .

3