United States v. John Mosely

Case: 12-30640 Document: 00512688876 Page: 1 Date Filed: 07/07/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 12-30640 FILED
Summary Calendar July 7, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOHN TERRELL MOSELY,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:09-CR-262-1
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
John Terrell Mosely, federal prisoner # 31171-034, is serving a 104-
month term of imprisonment for distribution of cocaine base (crack). He
appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion, in which
he sought a sentence reduction pursuant to the Fair Sentencing Act (FSA) and
Amendment 750 to U.S.S.G. § 2D1.1. The district court denied the motion on
the ground that at sentencing, it had applied the 18:1 crack-to-powder ratio in
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 12-30640
determining Mosely’s sentencing guidelines range. See Dorsey v. United
States, 132 S. Ct. 2321, 2329 (2012) (“[The FSA] had the effect of lowering the
[previous] 100-to-1 crack-to-powder ratio to 18-to-1.”). Mosely contends that
(1) his 104-month term of imprisonment was based on a guidelines range that
was amended by Amendment 750; (2) because the Sentencing Guidelines are
advisory, the district court had the discretion to resentence him based on a 1:1
crack-to-powder ratio; and (3) the district court had the discretion to impose a
“comparable reduction” in light of U.S.S.G. § 1B1.10(b)(2)(B), p.s., and the
Supreme Court’s decision in Freeman v. United States, 131 S. Ct. 2685 (2011).
Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence “in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered
by the Sentencing Commission pursuant to 28 U.S.C. [§] 994(o).” § 3582(c)(2);
see United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009). The district
court’s decision whether to reduce a sentence under § 3582(c)(2) is reviewed for
an abuse of discretion, and its interpretation of the Guidelines is reviewed de
novo. United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011).
Mosely’s base offense level at the time of sentencing was 28, and it was
unchanged at the time he filed his § 3582(c)(2) motion. See U.S.S.G.
§ 2D1.1(c)(6). Thus, the district court had no authority to reduce Mosely’s
sentence under § 3582(c)(2). See U.S.S.G. § 1B1.10(a)(2)(B); see Dillon v.
United States, 560 U.S. 817, 826-27 (2010). Because Mosely’s sentencing range
was not lowered, Mosely’s reliance on § 1B1.10(b)(2)(B) is unavailing. Further,
Freeman is inapposite as it concerned whether a defendant who was sentenced
pursuant to a binding plea agreement was barred from seeking a sentence
reduction under § 3582(c)(2). See Freeman, 131 S. Ct. at 2692-95.
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To the extent that Mosely argues that the district court had the
discretion to resentence him based on a 1:1 crack-to-powder ratio, his
argument is unpersuasive; a § 3582(c)(2) proceeding is not a full resentencing
or an opportunity to challenge the original sentence. See Dillon, 560 U.S. at
825-31; Doublin, 572 F.3d at 238. The principles of United States v. Booker,
543 U.S. 220 (2005), and its progeny do not apply to § 3582(c)(2) proceedings,
and a sentencing court lacks discretion to reduce a sentence further than the
reduction allowed pursuant to § 1B1.10. Dillon, 560 U.S. at 825-31; Doublin,
572 F.3d at 237-39.
AFFIRMED.
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