United States v. Fisher , 400 F. App'x 821 ( 2010 )

Case: 08-41284 Document: 00511280208 Page: 1 Date Filed: 11/01/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 1, 2010
No. 08-41284
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LEE ANTHONY FISHER,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:95-CR-141-ALL
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges
PER CURIAM:*
Lee Anthony Fisher, federal prisoner # 19177-009, appeals the denial of
his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). In 1995, a jury
convicted Fisher of possession with intent to distribute crack cocaine and
possession of a firearm by a felon. Based on Fisher’s prior convictions for drug
trafficking and aggravated assault, the district court concluded that Fisher was
a career offender within the meaning of § 4B1.1 of the United States Sentencing
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 08-41284
Guidelines and sentenced him to 300 months in prison. Fisher raises three
challenges to his sentence in this § 3582(c)(2) proceeding. None has merit.
First, Fisher contends that the district court erred by refusing to reduce
his sentence in light of Amendments 706, 711, and 715 to the Sentencing
Guidelines. These amendments reduced the base offense levels for crack-cocaine
offenses. United States v. Burns, 526 F.3d 852, 861 (5th Cir. 2008). The
Sentencing Commission made these amendments retroactive. Id. “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) (per curiam). In other words, a
defendant is eligible for a sentence reduction under § 3582(c)(2) only if an
amendment has lowered the Guideline range applicable to the defendant. See
U.S. S ENTENCING G UIDELINES M ANUAL § 1B.1.10 cmt. n.1 (2009). The 2007 and
2008 “crack cocaine guideline amendments do not apply to prisoners sentenced
as career offenders” under § 4B1.1 of the Guidelines. United States v. Anderson,
591 F.3d 789, 791 (5th Cir. 2009) (per curiam). Therefore, the district court did
not err in denying Fisher’s motion to have his sentence reduced under
§ 3582(c)(2).
Next, Fisher argues that even if none of the amendments listed in
Guidelines § 1B.10(c) explicitly authorizes a reduction in his sentence, the
district court nonetheless should have exercised its discretion under United
States v. Booker, 543 U.S. 220 (2005), to reduce his sentence based on the factors
enumerated in 18 U.S.C. § 3553(a). However, “Booker does not alter the
mandatory character of Guideline § 1B1.10’s limitations on sentence reductions.”
United States v. Doublin, 572 F.3d 235, 238 (5th Cir.) (per curiam), cert. denied,
130 S. Ct. 517 (2009); see also Dillon v. United States, 130 S. Ct. 2683, 2692
(2010) (“Given the limited scope and purpose of § 3582(c)(2), we conclude that
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No. 08-41284
proceedings under that section do not implicate the interests identified in
Booker.”). Under Guideline § 1B1.10(a)(2)(A), “[a] reduction in the defendant’s
term of imprisonment . . . is not authorized under 18 U.S.C. § 3582(c)(2) if . . .
[n]one of the amendments listed in subsection (c) is applicable to the defendant.”
Fisher has not identified any amendment listed in Guideline § 1B1.10(c) that is
applicable to him. As a result, the district court was not authorized to reduce his
sentence under § 3582(c)(2).
Finally, Fisher asserts that he should not have been sentenced as a career
offender because one of his prior offenses was a deferred adjudication. But “[a]
§ 3582(c)(2) motion is not a second opportunity” to challenge “the
appropriateness of the original sentence.” United States v. Whitebird, 55 F.3d
1007, 1011 (5th Cir. 1995). And even if it were, an offense resolved via deferred
adjudication may count toward a defendant’s status as a career offender under
§ 4B1.1 of the Guidelines where, as here, the defendant pled guilty to the
offense. See United States v. Daniels, 588 F.3d 835, 838 (5th Cir. 2009) (per
curiam), cert. denied, 130 S. Ct. 2424 (2010).
The Government has moved for summary affirmance. The motion is
GRANTED, and the judgment of the district court is AFFIRMED. The
Government’s motion for an extension of time in which to file a brief is DENIED
as moot.
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