United States v. Marcus Freeman , 399 F. App'x 916 ( 2010 )

Case: 08-10271 Document: 00511274143 Page: 1 Date Filed: 10/26/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 26, 2010
No. 08-10271
Conference Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARCUS LELAND FREEMAN, also known as Big Mark,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:96-CR-68-8
Before SMITH, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Marcus Leland Freeman, federal prisoner # 29129-077, appeals from the
district court’s denial of his motion for a reduction in his sentence pursuant to
18 U.S.C. § 3582(c)(2). Freeman also moves for leave to file supplemental briefs
and for appointment of counsel on appeal; those motions are denied.
On appeal, Freeman contends that the district court erred by failing to
recalculate the amount of crack cocaine attributable to him. He also argues that
Booker v. United States, 543 U.S. 220 (2005), and Kimbrough v. United States,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-10271 Document: 00511274143 Page: 2 Date Filed: 10/26/2010
No. 08-10271
552 U.S. 85 (2007), should apply in § 3582(c)(2) proceedings, allowing district
courts to impose sentences lower than the two-level adjustment contemplated
by the crack cocaine guidelines amendments.
We review the district court’s decision for abuse of discretion. United
States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462(2010). District courts are limited to the reduction in a sentence allowed by the
two-level decrease in a defendant’s offense level; they may not depart
downwardly from the resulting offense level. United States v. Doublin, 572 F.3d
235, 236 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009); see also Dillon v. United
States, 130 S. Ct. 2683, 2691-94 (2010) (holding that Booker does not apply to
§ 3582(c)(2) proceedings). Moreover, “[a] § 3582(c)(2) motion is not a second
opportunity to present mitigating factors to the 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 district court thus did not abuse its discretion
by declining to recalculate Freeman’s drug quantity.
Moreover, because Freeman was sentenced to a mandatory term of life
imprisonment, see United States v. Freeman, 164 F.3d 243, 251 (5th Cir. 1999),
the crack cocaine guidelines amendments did not affect his sentencing range.
See United States v. Pardue, 36 F.3d 429, 431 (5th Cir. 1994). Freeman was
ineligible for an adjustment pursuant to § 3582(c)(2) as a matter of law.
Freeman contends that the district court should have ordered the
preparation of a new presentence report and a new sentencing hearing. He also
argues that the district court erred by failing to appoint counsel to represent him
in his § 3582(c)(2) proceeding, and he requests that counsel be appointed to
assist him on remand.
Because Freeman received a mandatory life sentence, he cannot
demonstrate that the district court abused its discretion by denying a hearing
to consider his challenges to the drug quantity determination or otherwise
refusing to hold an evidentiary hearing on the § 3582(c)(2) motion. See
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No. 08-10271
Whitebird, 55 F.3d at 1011. Moreover, Freeman was not entitled to the
appointment of counsel in his § 3582(c)(2) proceeding. See id. Because no
remand is necessary, Freeman’s request for appointment of counsel to represent
him on remand is denied as moot.
AFFIRMED. MOTIONS DENIED.
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