United States v. Henry Green , 431 F. App'x 269 ( 2011 )

Case: 10-31164 Document: 00511520520 Page: 1 Date Filed: 06/24/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 24, 2011
No. 10-31164
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
HENRY L. GREEN, also known as Squally,
Defendant - Appellant
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 2:98-CR-20058-4
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Henry L. Green, federal prisoner # 09949-035, is serving a term of life
imprisonment for his conviction of conspiring to possess with the intent to
distribute cocaine base. Concurrently, he is serving two 360-month terms of
imprisonment imposed for convictions of distributing cocaine base. Green
appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a
reduction of his sentences based on amendments to U.S.S.G. § 2D1.1, the
Sentencing Guideline for crack cocaine offenses.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-31164 Document: 00511520520 Page: 2 Date Filed: 06/24/2011
No. 10-31164
“Section 3582(c)(2) permits a district court to reduce a term of
imprisonment when it is based upon a sentencing range that has subsequently
been lowered by an amendment to the Guidelines, if such a reduction is
consistent with the policy statements issued by the Sentencing Commission.”
United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997) (citing 18
U.S.C. § 3582(c)(2)). We review a district court’s denial of a reduction under
Section 3582(c)(2) for an abuse of discretion, its interpretation of the Guidelines
de novo, and its findings of fact for clear error. United States v. Evans, 587 F.3d
667, 672 (5th Cir. 2009).
Green has not shown that the district court erred in determining that he
was ineligible for a reduction of sentence. Green was sentenced for his
conspiracy conviction under 21 U.S.C. § 841(b)(1)(A), which mandates a
minimum term of life imprisonment for defendants with two or more prior felony
drug convictions. Application of the amendments to the crack cocaine Guideline
would not lower his advisory Sentencing Guidelines range of 360 months to life
imprisonment for that offense. See United States v. Pardue, 36 F.3d 429, 431
(5th Cir. 1994). Application of the amendments also would not lower Green’s
advisory Sentencing Guidelines range for his distribution offenses. If the
amendments reduced Green’s offense level as calculated under Section 2D1.1
from 38 to 36, his career offender offense level of 37 would govern the sentencing
calculation. U.S.S.G. § 4B1.1(b). With a criminal history category of VI, Green’s
sentencing range of 360 months to life imprisonment would remain unchanged.
If application of an amendment reduces a defendant’s base offense level
but does not alter the sentencing guideline range on which his sentence was
based, Section 3582(c)(2) does not authorize a reduction in sentence. Id. §
1B1.10(a)(2)(B), p.s. Thus, the district court had no authority to reduce Green’s
sentences and no basis on which to consider whether to exercise its discretion to
grant a sentence reduction. Id. § 1B1.10(a), p.s.
AFFIRMED.
2