United States v. Derrick Moore , 405 F. App'x 889 ( 2010 )

Case: 10-10149 Document: 00511329732 Page: 1 Date Filed: 12/22/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 22, 2010
No. 10-10149
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DERRICK MOORE, also known as Black,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:02-CR-174-14
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Derrick Moore, federal prisoner # 29110-177, appeals the district court’s
denial of his second motion to reduce his sentence pursuant to 18 U.S.C.
§ 3582(c)(2). Moore’s § 3582(c)(2) motion was based upon Amendment 706 to the
United States Sentencing Guidelines, which lowered the guidelines offense levels
for crack cocaine offenses. Moore is serving a 140-month sentence for a
conspiracy conviction in violation of 21 U.S.C. §§ 846 and 841(a)(1) & (b)(1).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10149 Document: 00511329732 Page: 2 Date Filed: 12/22/2010
No. 10-10149
Moore argues that he is eligible for a sentence reduction because his
offense involved crack cocaine, that he was entitled to a hearing in the district
court, and that the district court erred in failing to appoint him counsel in
connection with his § 3582(c)(2) proceeding. Moore was not entitled to a hearing
in the district court, see F ED. R. C RIM. P. 43(b)(4); United States v. Patterson,
42 F.3d 246, 248-49 (5th Cir. 1994); and there was no plain error in the failure
of the district court to appoint counsel for Moore sua sponte, see United States
v. Hereford, No. 08-10452, 2010 WL 2782780, *1 (5th Cir. July 12, 2010); United
States v. Whitebird, 55 F.3d 1007 (5th Cir. 1995).
Section 3582 permits a defendant to move, under certain circumstances,
for discretionary modification of his sentence if it was based on a sentencing
range that the Sentencing Commission later lowered. § 3582(c)(2); United States
v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). Amendment 706
applies to those whose sentences were determined by calculating their guidelines
offense levels in accordance with the pertinent Guideline for crack cocaine, i.e.,
cocaine base. See United States v. Burns, 526 F.3d. 852, 861 (5th Cir. 2008).
The district court denied Moore relief under § 3582(c)(2) based upon a
finding that his offense involved powder cocaine and not crack cocaine. Thus, the
district court concluded that Moore was ineligible for a § 3582(c)(2) sentence
reduction based upon Amendment 706.
The second addendum to Moore’s presentence report (PSR) makes clear,
however, that Moore’s sentence was calculated based solely upon a quantity of
cocaine base. Accordingly, the district court’s judgment is VACATED, and the
case is REMANDED to the district court for consideration of Moore’s § 3582(c)(2)
motion in light of the second addendum to the PSR.
2