USA v. Brian Terry

Filing

UNPUBLISHED OPINION FILED. [15-11291 Affirmed] Judge: TMR, Judge: PRO, Judge: JWE. Mandate pull date is 01/05/2017 [15-11291]

Case: 15-11291

Document: 00513798745

Page: 1

Date Filed: 12/15/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-11291
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
December 15, 2016

UNITED STATES OF AMERICA,

Lyle W. Cayce
Clerk

Plaintiff–Appellee,
v.
BRIAN TERRY, also known as B. T.,
Defendant–Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:09-CR-293-4
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
Brian Terry, federal prisoner # 42458-177, appeals the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion for a reduction of his sentence based
on Amendment 782 to the United States Sentencing Guidelines, which lowered
the base offense levels in the drug quantity table set forth in U.S.S.G.
§ 2D1.1(c). We review for abuse of discretion a district court’s decision whether
to reduce a sentence under § 3582(c)(2). United States v. Henderson, 636 F.3d

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-11291

Document: 00513798745

Page: 2

Date Filed: 12/15/2016

No. 15-11291
713, 717 (5th Cir. 2011). “A district court abuses its discretion if it bases its
decision on an error of law or a clearly erroneous assessment of the evidence.”
Id. (quoting United States v. Smith, 417 F.3d 483, 486-87 (5th Cir. 2005)).
At his original sentencing, Terry’s offense level was calculated based on
the career-offender guideline in § 4B1.1 and not the drug amounts in
§ 2D1.1(c). Accordingly, his sentence was not based on a guideline that has
been amended, and the district court did not abuse its discretion in concluding
that he is not eligible for a sentence reduction. See United States v. Banks, 770
F.3d 346, 349 (5th Cir. 2014). He cannot use a § 3582(c)(2) motion to challenge
the application of the career-offender guideline provision at his original
sentencing based on the Supreme Court’s decision in Johnson v. United States,
135 S. Ct. 2551 (2015). See United States v. Hernandez, 645 F.3d 709, 712 (5th
Cir. 2011) (“A modification proceeding is not the forum for a collateral attack
on a sentence long since imposed . . . .”).
AFFIRMED.

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