United States v. Kevin Harden ( 2019 )


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  •      Case: 18-40985       Document: 00515092104         Page: 1     Date Filed: 08/26/2019
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 18-40985                            FILED
    Summary Calendar                    August 26, 2019
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee
    v.
    KEVIN HARDEN, also known as Keisha,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Eastern District of Texas
    USDC No. 4:11-CR-127-8
    Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
    PER CURIAM: *
    Kevin Harden, proceeding pro se, challenges the district court’s denial of
    both his motion for a sentence reduction under 
    18 U.S.C. § 3582
    (c)(2), in
    accordance with Amendment 782 to the Sentencing Guidelines, and his motion
    for reconsideration of that denial.
    Harden was sentenced to 360-months’ imprisonment following a jury-
    trial conviction for a drug-trafficking conspiracy, in violation of 21 U.S.C.
    * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 18-40985     Document: 00515092104      Page: 2   Date Filed: 08/26/2019
    No. 18-40985
    §§ 841(a)(1), 846.   Amendment 782, however, had the effect of lowering
    Harden’s offense level under the standard guideline below the level calculated
    under the career-offender guideline. Thus, Harden’s career-offender guideline
    status was determinative of whether § 3582(c)(2) relief was available. Under
    the career-offender guideline, Harden’s offense level was 37, and his criminal
    history category was VI, producing a sentencing range of 360 months to life
    imprisonment. See U.S.S.G. § 4B1.1(b). Because that is the same as the range
    calculated in the presentence investigation report, and not a lower range, the
    district court concluded that Harden’s § 3582(c)(2) motion lacked merit. A
    prisoner is ineligible for a § 3582(c)(2) reduction if his sentence is not based on
    a lowered guidelines range. Koons v. United States, 
    138 S. Ct. 1783
    , 1788
    (2018).
    Harden asserts: the district court never properly found he was a career
    offender; and, consequently, he is entitled to a sentence reduction under
    Amendment 782.
    Our court “review[s] a decision whether to reduce a sentence under
    § 3582(c)(2) for abuse of discretion”. United States v. Carter, 
    595 F.3d 575
    , 577
    (5th Cir. 2010) (citing United States v. Cooley, 
    590 F.3d 293
    , 294–95 (5th Cir.
    2009)). The denial of a motion for reconsideration is also reviewed for abuse of
    discretion. See United States v. Hassan, 
    83 F.3d 693
    , 697 (5th Cir. 1996).
    Contrary to Harden’s contention that his career-offender status was
    never pronounced, this court previously concluded the district court relied on
    the career-offender adjustment in reaching its original sentencing decision.
    United States v. Romans, 
    823 F.3d 299
    , 314–15 (5th Cir. 2016). Harden may
    not use his § 3582(c)(2) motion to challenge that career-offender determination.
    See Dillon v. United States, 
    560 U.S. 817
    , 825 (2010) (noting “[b]y its terms,
    § 3582(c)(2) does not authorize a sentencing or resentencing proceeding”); see
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    No. 18-40985
    also United States v. Shaw, 
    30 F.3d 26
    , 29 (5th Cir. 1994) (holding attempted
    re-litigation of a factual issue from sentencing is “not cognizable under
    § 3582(c)(2)”).   The district court therefore did not abuse its discretion in
    denying Harden’s § 3582(c)(2) motion and his motion for reconsideration of
    that denial.
    AFFIRMED.
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