United States v. Lomas ( 2021 )

Case: 19-30876 Document: 00515740253 Page: 1 Date Filed: 02/10/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 10, 2021
No. 19-30876 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Deshawn Lomas, also known as D.,
Defendant—Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:06-CR-158-1
Before Jones, Barksdale, and Stewart, Circuit Judges.
Per Curiam:*
In 2007, Deshawn Lomas, federal prisoner # 02686-095, pleaded
guilty to: one count of conspiracy to possess, with intent to distribute,
methylenedioxymethamphetamine and 50 grams or more of cocaine base, in
violation of 21 U.S.C. § 846 (Count One); four counts of distribution of five
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-30876 Document: 00515740253 Page: 2 Date Filed: 02/10/2021
No. 19-30876
grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Counts
Two through Five); one count of distribution of 50 grams or more of cocaine
base, in violation of 21 U.S.C. § 841(a)(1) (Count Six); and possession of
cocaine, in violation of 21 U.S.C. § 844(a) (Count Seven). The presentence
investigation report deemed Lomas a career offender under the Sentencing
Guidelines, giving him a Guidelines range of 262- to 327-months’
imprisonment and 10-years’ supervised release. The district court sentenced
Lomas to, inter alia, 300-months’ imprisonment and 10-years’ supervised
release. Lomas did not appeal.
Now, he challenges the court’s denial of his 2019 motion for a reduced
sentence pursuant to § 404 of the First Step Act of 2018 (First Step Act).
Reducing a sentence pursuant to the First Step Act is generally reviewed for
abuse of discretion. United States v. Jackson, 945 F.3d 315, 319 (5th Cir.
2019). Along that line, a resentencing court has broad discretion in
determining resentencing because “nothing in [§ 404] shall be construed to
require a court to reduce any sentence”. First Step Act, § 404(c). On the
other hand, a court abuses its discretion when it “makes an error of law or
bases its decision on a clearly erroneous assessment of the evidence”. United
States v. Larry, 632 F.3d 933, 936 (5th Cir. 2011) (internal quotation marks
and citation omitted).
The Fair Sentencing Act of 2010 (made retroactive by the First Step
Act) lowered, inter alia, Lomas’ supervised-release range to eight years.
Notwithstanding the court’s reducing his supervised-release term to eight
years, Lomas contends the court erred in denying him a reduction in his
imprisonment sentence. He maintains the court relied on an inaccurate
assumption it lacked the authority to vary his unchanged Guidelines
sentencing range—262- to 327-months’ imprisonment—when it declined to
reduce his sentence because “the original sentencing judge imposed a
[G]uideline sentence”.
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No. 19-30876
The district court did not misinterpret its authority under the First
Step Act. Rather, it exercised its discretion by declining to impose a
downward variance for Lomas’ imprisonment sentence. See United States v.
Carr, 823 F. App’x 252, 254–55 (5th Cir. 2020) (rejecting the same
contention regarding a district court’s interpretation of its discretion under
the Fair Step Act); United States v. Pino Gonzalez, 636 F.3d 157, 160 (5th Cir.
2011) (holding an unpublished case is “highly persuasive” where it has
“explicitly rejected the identical argument [defendant] advances”); see also
United States v. Batiste, 980 F.3d 466, 478 (5th Cir. 2020) (affirming the
district court’s denial of a sentence reduction for a still-within-Guidelines
sentence because the court, “having evaluated all pertinent factors, simply
exercised its statutory discretion to deny the motion”).
In addition, Lomas asserts the court’s use of an inapplicable form in
its ruling evinces the court’s misapprehension of its discretion to reduce his
sentence. Even if an improper form was used, the court stated it “chooses”
not to impose a downward variant sentence—obviating any inference the
court felt bound by the form. See Carr, 823 F. App’x at 255 n.2 (rejecting the
same claim). Lomas fails to demonstrate the requisite abuse of discretion
regarding the court’s use of the form or its statement of reasons for denying
the motion.
AFFIRMED.
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