United States v. Washington ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 19, 2009
No. 08-30633
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ALFRED WASHINGTON, also known as Dough Boy,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:01-CR-50070-9
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Alfred Washington appeals the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion for a reduction of sentence, which was based on the United
States Sentencing Commission’s amendments to the Sentencing Guidelines’s
base offense levels for crack cocaine.
Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence where the sentencing range is later lowered by the Sentencing
Commission. See § 3582(c)(2). We review the district court’s discretionary
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-30633
determination on a § 3582(c)(2) motion for abuse of discretion. United States v.
Doublin, 572 F.3d 235, 236-37 (5th Cir. 2009), petition for cert. filed, __ U.S.L.W.
__ (U.S. Sept. 21, 2009)(No. 09-6657).
Washington argues that the district court abused its discretion in denying
his request for a reduced sentence without considering his objections to the
recalculation of his base offense level in conjunction with the factors in 18 U.S.C.
§ 3553(a). He contends that the district court should have considered that his
counsel had no reason to object to Washington being held responsible for
amounts over 1.5 kilograms of cocaine base at sentencing. Finally, he also
argues that the district court abused its discretion in not granting a comparable
sentence reduction under U.S.S.G. § 1B1.10(b)(2)(B).
Because Washington was held accountable for more than 4.5 kilograms of
cocaine base when he was sentenced, his guidelines computation did not change
following Amendment 706, and his sentencing range was not lowered. See
Amend. 706; U.S.S.G. § 2D1.1(c)(1). With respect to his argument that he should
now be able to challenge the drug quantity for which he was held responsible,
a § 3582(c)(2) motion “is not a second opportunity to present mitigating factors
to the sentencing 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); see § 1B1.10(a)(3). Therefore, Washington was not entitled to have his
sentencing guidelines range recalculated. See Doublin, 572 F.3d at 237-38.
Washington argues that guidelines section 1B1.10(b)(2)(B) provides that
if the original sentence imposed was below the guidelines range, a reduction
comparably less than the amended range may be made. Because Washington’s
sentencing range was not lowered as a result of the amendment, the district
court did not abuse its discretion in refusing to make such a reduction.
The denial of the motion is AFFIRMED.
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