United States v. Duque ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 18, 2009
No. 08-20412
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
GERMAN DUQUE
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:90-CR-424-2
Before JONES, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
German Duque, federal prisoner # 54991-079, appeals the denial of his pro
se motion for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2).
Duque contended that he was entitled to a reduction of his sentence under
Amendment 505 to the Sentencing Guidelines, which is retroactive. Under
Amendment 505, the maximum base offense level under U.S.S.G. § 2D1.1 for
any drug type was lowered from 42 to 38. The district court, however,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-20412
erroneously denied the motion because Duque’s sentence was not based on a
quantity of crack cocaine, a reference to Amendment 706.
Nevertheless, Duque is not entitled to relief under Amendment 505. At
the time of Duque’s sentencing, an offense involving at least 150 but less than
500 kilograms of cocaine resulted in base offense level of 38. After Amendment
505, a quantity of cocaine equal to or exceeding 150 kilograms of cocaine merited
the base offense level of 38. The probation officer preparing Duque’s presentence
investigation report determined that Duque’s offense had involved 353 kilograms
of cocaine and assessed a base offense level of 38. The amount of cocaine was not
disputed by Duque and was specifically adopted by the district court at the
sentencing hearing. Therefore, Duque did not receive a higher base offense level
that was subsequently lowered by Amendment 505. Although Duque’s sentence
resulted from a total offense level of 40, this was the consequence of upward and
downward adjustments to the base offense level. Nothing in Amendment 505
affected the applicability of such adjustments. Consequently, the judgment of
the district court is affirmed on alternate grounds. See United States v. Tello,
9 F.3d 1119, 1128 (5th Cir. 1993). AFFIRMED.
2