United States v. Marcellus Reynolds ( 2010 )

Case: 09-30596 Document: 00511114754 Page: 1 Date Filed: 05/18/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 18, 2010
No. 09-30596
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARCELLUS QUECHEZ REYNOLDS, also known as Tittymoe,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:04-CR-20145-9
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Marcellus Quechez Reynolds, now federal prisoner # 38960-179, has
appealed the denial of his motions under 18 U.S.C. § 3582(c)(2) requesting a
reduction of his sentence in light of recent amendments to the Sentencing
Guidelines pertaining to cocaine base offenses. Section 3582(c)(2) permits the
discretionary modification of a defendant’s sentence in certain cases where the
sentencing range has been subsequently lowered by the Sentencing Commission.
See United States v. Doublin, 572 F.3d 235, 237 (5th Cir.), cert. denied, 130 S. Ct.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-30596 Document: 00511114754 Page: 2 Date Filed: 05/18/2010
No. 09-30596
517 (2009). Amendment 706 to the Sentencing Guidelines modified the
guideline ranges applicable to cocaine base offenses to reduce the disparity
between cocaine base and powder cocaine sentences. U.S.S.G. Supp. to App. C,
Amend. 706; Doublin, 572 F.3d at 236.
Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence only where the defendant’s sentencing range is actually lowered by the
Sentencing Commission. See § 3582(c)(2). Because Reynolds was accountable
for more than 4.5 kilograms of cocaine base, Amendment 706 did not change his
guidelines sentence range. See Amend. 706.
“A § 3582(c)(2) motion is not a second opportunity to present mitigating
factors to the sentencing judge, nor is it a challenge to the appropriateness of the
original sentence.” United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir.
1995); see also U.S.S.G. § 1B1.10, p.s. Thus, Reynolds was not entitled to have
the district court recalculate his base offense level.
Because Reynolds is ineligible for relief, the district court’s order is
AFFIRMED. Reynolds’s request in his brief for appointment of counsel for
presentation of oral argument is DENIED.
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