United States v. Maurice Anderson ( 2010 )

Case: 09-11024 Document: 00511145512 Page: 1 Date Filed: 06/17/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 17, 2010
No. 09-11024
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MAURICE ANDERSON,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CR-64-1
Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
Maurice Anderson, federal prisoner # 34064-177, appeals from the district
court’s denial of his motion seeking a reduction in his sentence pursuant to 18
U.S.C. § 3582(c)(2).
Using his original § 3582(c)(2) motion as his appellate brief, Anderson cites
Guideline Amendments 485, 487, 493, and 709. However, these amendments
are not listed in U.S.S.G. § 1B1.10(c) as any of the amendments that could result
in a § 3582(c)(2) sentence modification. See § 1B1.10(a), (c).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-11024 Document: 00511145512 Page: 2 Date Filed: 06/17/2010
No. 09-11024
To the extent that Anderson’s brief is liberally construed to contend that
his sentence should be reduced based on Amendment 706, Anderson is ineligible
for relief on this basis because his offense level was based on his responsibility
for more than 4.5 kilograms of crack cocaine. See U.S.S.G. Supp. to App. C,
Amend. 706; U.S.S.G. § 2D1.1, comment. (n.10(D)(ii)(I)).
Anderson also argues that his sentence should be reduced under Guideline
Amendments 484, 506, and 599. However, all of these amendments were
effective long before Anderson’s offense conduct occurred in 2006. See
Amendment 484, U.S. Sentencing Guidelines Manual, App. C., Vol. 1, pp. 379-80
(2003) (noting November 1, 1993, effective date); Amendment 506, U.S.
Sentencing Guidelines Manual, App. C., Vol. 1, pp. 417-18 (2003) (noting
November 1, 1994, effective date); Amendment 599, U.S. Sentencing Guidelines
Manual, App. C., Vol. 2, pp. 69-71 (2003) (noting November 1, 2000, effective
date).
To the extent that Anderson’s brief is liberally construed to raise
arguments concerning his lack of notice for an aggravated felony enhancement,
the use of a magistrate judge in his criminal proceedings, his innocence of the
offense, the constitutionality of his sentence under Apprendi v. New Jersey, 530
U.S. 466 (2000), and United States v. Booker, 543 U.S. 220 (2005), and the
treatment of § 1B1.10 as mandatory after Booker, a motion under § 3582(c)(2)
“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). Furthermore,
this court has recognized that Booker did not alter the mandatory character of
§ 1B1.10’s limitations on sentence reductions. See United States v. Doublin, 572
F.3d 235, 238 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). Therefore, these
claims are not cognizable in a § 3582 motion. See Whitebird, 55 F.3d at 1011;
United States v. Evans, 587 F.3d 667, 674 (5th Cir. 2009), petition for cert. filed
(Jan. 28, 2010) (No. 09-8939).
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No. 09-11024
In light of the foregoing, Anderson has not shown that the district court
abused its discretion in denying his § 3582(c)(2) motion. See Evans, 587 F.3d at
672.
AFFIRMED.
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