United States v. Jamie Perkins , 364 F. App'x 133 ( 2010 )

Case: 09-10177 Document: 00511023100 Page: 1 Date Filed: 02/09/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 9, 2010
No. 09-10177
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JAMIE PERKINS,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:97-CR-55-21
Before JOLLY and DENNIS, Circuit Judges, and BOYLE,* District Judge.
PER CURIAM:**
Following his conviction by a jury on several narcotics and firearms
charges, Jamie Perkins was sentenced to 168 months in prison on each of three
counts involving crack cocaine, with the terms to run concurrently. Following
amendments to the Sentencing Guidelines that lowered the base offense levels
for crack cocaine offenses, the district court granted Perkins’s motion to reduce
his sentence under 18 U.S.C. § 3582(c)(2) and reduced Perkins’s sentence on the
*
District Judge of the Northern District of Texas, sitting by designation.
**
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10177 Document: 00511023100 Page: 2 Date Filed: 02/09/2010
No. 09-10177
crack cocaine convictions to 133 months of imprisonment on each count, to run
concurrently with each other. Perkins appeals. The Government has moved for
summary affirmance or, alternatively, for an extension of time to file a brief.
Perkins challenges the limits on the district court’s discretion set forth in
U.S.S.G § 1B1.10 and argues the district court had the authority to impose a
sentence below the minimum under United States v. Booker, 543 U.S. 220 (2005).
The argument fails in the light of our recent decision in United States v. Doublin,
572 F.3d 235 (5th Cir. 2009).
Perkins contends that the district court erred in failing to revisit the drug
quantity used to calculate his guidelines offense level and the sufficiency of the
evidence as to certain of the firearms charges. As we have previously stated, 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). The
application of § 1B1.10 is mandatory, Doublin, 572 F.3d at 238, and under
§ 1B.1.10, the district court, when reducing a defendant’s sentence under
§ 3582(c)(2), “shall leave all other guideline application decisions unaffected.”
Perkins further argues that he had a right to be present at his
resentencing. Because the district court “merely modifie[d] an existing sentence”
rather than imposing a new sentence after the original sentence had been set
aside, Perkins was not entitled to be present. See United States v. Patterson, 42
F.3d 246, 248-49 (5th Cir. 1994).
Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED. The
Government’s alternative motion for an extension of time to file a brief is
DENIED as moot.
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