United States v. Christopher Hordge ( 2020 )

Case: 20-10596 Document: 00515630085 Page: 1 Date Filed: 11/06/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 6, 2020
No. 20-10596 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Christopher Hordge, also known as Lil Chris,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:10-CR-206-5
Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Christopher Hordge, federal prisoner # 42836-177, who stands
convicted of conspiracy to possess with intent to distribute 50 grams or more
of cocaine base in violation of 21 U.S.C. §§ 841(a) and 846, appeals the
district court’s denial of his motion to reduce his sentence pursuant to the
*
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opinion should not be published and is not precedent except under the limited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.
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No. 20-10596
First Step Act of 2018 (FSA). The district court determined that Hordge
was eligible for resentencing under the FSA but exercised its discretion in
deciding not to reduce his sentence. See United States v. Jackson, 945 F.3d
315, 321 (5th Cir. 2019), cert. denied, 140 S. Ct. 2699 (2020). Hordge argues
that the district court erred in making its FSA determination because it
calculated his guidelines range based upon the amount of drugs for which the
court found him responsible at sentencing rather than on the amount of
cocaine base charged in the indictment. He has otherwise abandoned any
challenge to the district court’s reasons for declining to reduce his sentence
under the FSA. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
We review a district court’s ruling on a motion to resentence under
the FSA for abuse of discretion. Jackson, 945 F.3d at 319. However, “to the
extent the court’s determination turns on the meaning of a federal statute
such as the FSA, our review is de novo.” Id.
Hordge’s appellate argument is unavailing. Section 404 of the FSA
gives courts the discretion to apply the Fair Sentencing Act of 2010 to reduce
a prisoner’s sentence for certain covered offenses. FSA, § 404, Pub. L. No.
115-391, 132 Stat. 5194, 5222 (2018); United States v. Hegwood, 934 F.3d 414,
416-17 (5th Cir.), cert. denied, 140 S. Ct. 285 (2019). Nothing in the FSA
states that, when the district court is determining whether to apply the Fair
Sentencing Act to reduce a sentence for an eligible defendant, it must
recalculate the defendant’s base offense level under the Sentencing
Guidelines based only upon the drug amount charged in the indictment. See
FSA, § 404, 132 Stat. at 5222. Moreover, it is well settled that district courts
can make factual findings regarding drug quantity to determine a sentencing
guidelines range, as long as the sentence imposed is within the appropriate
statutory range. See United States v. Romans, 823 F.3d 299, 316-17 (5th Cir.
2016); United States v. Hinojosa, 749 F.3d 407, 411-13 (5th Cir. 2014).
Further, as we made clear in Hegwood, 934 F.3d at 415, the FSA “does not
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No. 20-10596
allow plenary resentencing.” Accordingly, the district court’s judgment is
AFFIRMED.
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