United States v. Exdonovan Peak

Case: 09-60271 Document: 00511007087 Page: 1 Date Filed: 01/19/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 19, 2010
No. 09-60271
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EXDONOVAN PEAK,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:96-CR-36-1
Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Exdonovan Peak, federal prisoner # 08770-005, appeals the district court’s
denial of his 18 U.S.C. § 3582(c) motion to reduce the 365-month sentence
imposed following his conviction for conspiracy to possess with intent to
distribute cocaine. Peak sought a reduction in sentence pursuant to the
amendments to the Sentencing Guidelines for crack cocaine. The district court
determined that Peak did not qualify for a reduction because his offense involved
over 4.5 kilograms of crack cocaine. See U.S.S.G. § 2D1.1, comment.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-60271 Document: 00511007087 Page: 2 Date Filed: 01/19/2010
No. 09-60271
(n.10(D)(ii)(I)). Peak argues that he qualified for a two-level reduction in his
base offense level because his offense involved less than 4.5 kilograms of crack
cocaine and that the district court’s reliance on the estimate in the presentence
report that the conspiracy involved 16 kilograms of crack cocaine was
insufficient.
Although the district court’s decision whether to reduce a sentence
ordinarily is reviewed for an abuse of discretion, we review the court’s
interpretation of the Guidelines de novo and its factual findings for clear error.
United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009), cert. denied, 2009
WL 3073270 (Nov. 2, 2009) (No. 09-6657); United States v. Mimms, 43 F.3d 217,
220 (5th Cir. 1995). Because the trial evidence supports the district court’s
finding that the amount of crack cocaine involved in the offense exceeded 4.5
kilograms, the district court did not err in denying Peak’s motion for a reduction
of sentence. See U.S.S.G. § 2D1.1, comment. (n.10(D)(ii)(I)).
AFFIRMED.
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