United States v. Spencer , 334 F. App'x 705 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 19, 2009
No. 08-41346
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TRAVIS SPENCER,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:93-CR-223-ALL
Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Travis Spencer appeals the denial of motions to amend his original
sentence and to correct a clerical error in an amended judgment. A collateral
attack on or direct appeal from the 1995 sentence would be untimely, and
Spencer disavows such a challenge. See 28 U.S.C. § 2255(f); F ED. R. A PP.
P. 4(b)(1)(A).
*
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should not be published and is not precedent except under the limited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. 08-41346
Spencer contends that 18 U.S.C. § 3582(c)(1)(B) provides an avenue for
applying 18 U.S.C. § 3553(b)(1) to modify the sentence. This contention lacks
merit because § 3582(c)(1)(B) allows a district court to modify an existing term
of imprisonment to the extent “expressly permitted by statute,” and § 3553(b)(1)
does not expressly permit the modification of a sentence that has already been
imposed. See §§ 3553(b)(1), § 3582(c)(1)(B). Section 3582(c)(1)(B) therefore does
not provide a means for applying § 3553(b)(1). See United States v. Garcia-
Quintanilla, 574 F.3d 295, 303 (5th Cir. 2009) (refusing to use § 3582(c) as a
means to apply a statute that does not expressly permit modification of a
sentence that has already been imposed). Moreover, § 3553(b)(1), which required
treating the Sentencing Guidelines as mandatory, is unconstitutional. United
States v. Booker, 543 U.S. 220, 245 (2005).
Any clerical error was corrected by the Second Amended Judgment
reflecting that the district court recommended but did not order that the Bureau
of Prisons run Spencer’s federal sentence consecutively to an undischarged state
sentence. The judgment of the district court is AFFIRMED.
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