United States v. Lara-Alvarez ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6931
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MIGUEL ANGEL LARA-ALVAREZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (7:01-cr-00130-F-3)
Submitted: February 26, 2010 Decided: August 20, 2010
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Miguel Angel Lara-Alvarez, Appellant Pro Se. Jennifer P. May-
Parker, Rudolf A. Renfer, Jr., Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Miguel Angel Lara-Alvarez appeals from the district
court’s grant in part of his motion for reduction of sentence
pursuant to 18 U.S.C. § 3582(c)(2) (2006), based on the crack
cocaine amendments to the sentencing guidelines. Lara-Alvarez
had requested a two-level reduction in his offense level and a
sentence at the bottom of the amended guideline range. The
district court reduced his offense level, but imposed a sentence
at the top of the amended guideline range. Lara-Alvarez asserts
on appeal that the district court had jurisdiction under United
States v. Booker, 543 U.S. 220 (2005), to conduct a full
resentencing hearing and to impose a non-guideline sentence
guided only by the sentencing goals set out in 18 U.S.C.
§ 3553(a) (2006). He acknowledges that U.S. Sentencing
Guidelines Manual § 1B1.10, p.s. (2008) limits the scope of the
proceeding and the extent of the reduction the district court
may make under § 3582(c)(2), but contends that, after Booker,
this policy statement must be regarded as advisory, not
mandatory. We affirm.
We review an order granting or denying a § 3582(c)(2)
motion for abuse of discretion. United States v. Munn, 595 F.3d
183, 186 (4th Cir. 2010). Lara-Alvarez’s claim is without merit
because Booker is inapplicable to § 3582(c)(2) proceedings. See
Dillon v. United States, 130 S. Ct. 2683, 2693-94 (2010)
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(holding that § 3582(c)(2) does not authorize a resentencing,
but merely provides for a sentence reduction within the bounds
established by the Sentencing Commission, and that Booker does
not apply to § 3582(c)(2) proceedings); see also United
States v. Dunphy, 551 F.3d 247, 252-53 (4th Cir.), cert. denied,
129 S. Ct. 2401 (2009).
We therefore affirm the sentence imposed by the
district court. We deny Lara-Alvarez’ motion to appoint
counsel. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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