United States v. Pamela Harris , 690 F. App'x 866 ( 2017 )

Case: 16-10306 Document: 00514034465 Page: 1 Date Filed: 06/15/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-10306 FILED
Summary Calendar June 15, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
Clerk
Plaintiff–Appellee,
v.
ANDRE LAMONT RAWLS,
Defendant–Appellant.
Cons. w/No. 16-10329
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
PAMELA HARRIS,
Defendant–Appellant.
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-334-4
USDC No. 3:90-CR-189-6
Case: 16-10306 Document: 00514034465 Page: 2 Date Filed: 06/15/2017
No. 16-10306
c/w No. 16-10329
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
Andre Lamont Rawls, federal prisoner # 03285-017, and Pamela Harris,
federal prisoner # 21153-077, appeal following the district court’s denial of
their 18 U.S.C. § 3582(c)(2) motions to reduce their sentences based on
Amendment 782 to the Sentencing Guidelines (U.S.S.G.). Rawls pleaded guilty
to conspiracy to possess with intent to distribute and to distribute five
kilograms or more of cocaine. The district court determined that Rawls was a
career offender pursuant to U.S.S.G. § 4B1.1 but gave him credit for
substantial assistance and sentenced him to 151 months in prison. Rawls now
argues that his applicable guidelines range has been reduced pursuant to
Amendment 782 because the district court erroneously determined that he was
a career offender, as his prior Florida convictions for cocaine trafficking were
broader than the generic definition of a controlled substance offense.
Harris was convicted in 1991 of conspiracy to sell five kilograms or more
of cocaine. The district court determined that her offense level was 38
pursuant to U.S.S.G. § 2D1.1 and sentenced her to 360 months in prison. When
Harris sought a sentencing reduction under § 3582(c)(2), the district court
ascertained that although application of Amendment 782 would have resulted
in an offense level of 36 under § 2D1.1, Harris would have been found to be a
career offender with an offense level of 37 under § 4B1.1(b)(1) based on the
statutory maximum life sentence, which would result in the same guidelines
range. Harris maintains that, pursuant to Apprendi v. New Jersey, 530 U.S.
466 (2000), the district court should have recognized that she should not have
* 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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faced a life sentence because the jury was not advised that it had to find the
relevant drug quantity. She therefore asserts that the court should have
determined that the offense level under § 4B1.1(b)(3) was 32 based on the
proper statutory maximum sentence of 20 years, that her sentence therefore
would have been based on the offense level of 36 calculated under § 2D1.1, and
that she was entitled to a reduced sentence under the newly applicable
guidelines range.
Because Rawls and Harris are challenging whether the district court had
authority to reduce their sentences under § 3582(c)(2), we review the district
court’s determination de novo. United States v. Jones, 596 F.3d 273, 276 (5th
Cir. 2010). A § 3582(c)(2) proceeding is not a full resentencing or an
opportunity to challenge the original sentence. See Dillon v. United States, 560
U.S. 817, 827 (2010); United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir.
1995); U.S.S.G. § 1B1.10(a)(3). A district court considering a reduction under
§ 3582(c)(2) must “determine the amended guideline range that would have
been applicable to the defendant if the amendment(s) to the guidelines . . . had
been in effect at the time the defendant was sentenced.” § 1B1.10(b)(1).
Rawls’s challenge to the applicability of the career offender Guideline
constitutes “a challenge to the appropriateness of the original sentence,” which
is not cognizable under § 3582(c)(2). Whitebird, 55 F.3d at 1011. Likewise,
Harris’s assertion that Apprendi should be taken into account in determining
the statutory maximum sentence she faced for the purpose of determining the
offense level of the career offender Guideline in effect asks the court to
determine the amended guidelines range post-Apprendi, rather than the range
“that would have been applicable . . . if the amendment(s) . . . had been in effect”
at the time of her sentencing. § 1B1.10(b)(1). Moreover, Apprendi is not
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retroactively applicable to cases that became final before it was decided.
United States v. Brown, 305 F.3d 304, 309-10 (5th Cir. 2002) (per curiam).
The judgments in these cases are therefore AFFIRMED.
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