United States v. Jackson ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 6, 2009
No. 08-10628
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ARTHUR JARROD JACKSON, also known as Arthur J King
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:92-CR-499-1
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Arthur Jarrod Jackson, federal prisoner # 24173-077, was convicted by a
jury of possession with intent to distribute cocaine base; using or carrying a
firearm during and in relation to a drug-trafficking crime and aiding and
abetting; and being a felon in possession of a firearm. He appeals the district
court’s denial of his motion for a reduction of his sentence pursuant to 18 U.S.C.
§ 3582(c)(2) based upon Amendments 706 and 711 of the Sentencing Guidelines,
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-10628
which lowered the applicable offense level for crack cocaine offenses. The
district court held that, because Jackson’s total offense level was calculated
under U.S.S.G. § 4B1.1(b), and not U.S.S.G. § 2D1.1, Amendments 706 and 711
did not lower his sentencing range, and therefore Jackson did not qualify for a
sentence reduction.
Section 3582(c)(2) provides, in relevant part, that a district court “may not
modify a term of imprisonment once it has been imposed except . . . in the case
of a defendant who has been sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the Sentencing
Commission.” The decision whether to reduce a sentence under § 3582(c)(2) is
discretionary, and this court reviews the denial of a § 3582 motion for abuse of
discretion. United States v. Boe, 117 F.3d 830, 831 (5th Cir. 1997).
Jackson argues that he is entitled to a sentence reduction even though he
was sentenced as a career offender because the Guidelines are no longer
mandatory. He argues that the district court erred in not ordering a new
presentence report (PSR), holding a new sentencing hearing, and resentencing
him under the advisory Guidelines and United States v. Booker, 543 U.S. 220
(2005). He argues that the original PSR incorrectly alleged that his offense
involved a greater drug quantity than alleged in the indictment; he argues that
the actual statutory maximum sentence for count one was 20 years and the
statutory maximum sentence for count two was five years, resulting in a total
maximum sentence of 25 years. He also argues that because his offense involved
cocaine in freebase form or cocaine cut with benzocaine, his sentence should
have been based on the powder cocaine guideline provision. He argues that the
district court erred in sentencing him as a career offender.
Jackson has also filed a motion for permission to file a supplemental brief,
in which he argues that his conviction for using and carrying a firearm during
a drug trafficking crime should be vacated in view of Bailey v. United States, 516
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No. 08-10628
U.S. 137 (1995). Jackson’s motion for permission to file a supplemental brief is
granted.
The district court’s denial of Jackson’s motion is supported by the plain
language of 3582(c)(2). A reduction in Jackson’s base offense level under § 2D1.1
pursuant to Amendments 706 and 711 would not affect his guideline range
because the range was calculated under § 4B1.1. Because Jackson’s guideline
range was not derived from the quantity of crack cocaine involved in the offense,
he was not sentenced “based on a sentencing range that has subsequently been
lowered by the Sentencing Commission,” and a reduction is not permitted. See
§ 3582(c)(2). Further, to the extent Jackson argues that the district court had
the discretion to reduce his sentence under § 3582(c)(2) in light of Booker, the
argument is unavailing because Booker was not based on a retroactive
amendment to the Guidelines. See United States v. Shaw, 30 F.3d 26, 29 (5th
Cir. 1994). To the extent that Jackson raises arguments that do not relate to a
Guideline amendment that has lowered Jackson’s applicable guidelines range,
§ 3582 is not the appropriate vehicle to raise it. See id.; see also Tolliver v.
Dobre, 211 F.3d 876, 877 (5th Cir. 2000) (“Section [28 U.S.C.] 2255 is the
primary means of collaterally attacking a federal sentence.”). The district court
did not abuse its discretion by denying a sentence reduction. See Boe, 117 F.3d
at 831. Accordingly, the judgment of the district court is affirmed.
MOTION GRANTED; AFFIRMED.
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