United States v. Jones

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 7, 2009
No. 08-50485
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
AUTRY LEE JONES
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:90-CR-177-ALL
Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Autry Lee Jones, Texas prisoner # 52873-080, was convicted in 1991 of
conspiracy to possess with intent to distribute crack cocaine and possession with
intent to distribute crack cocaine in violation of 21 U.S.C. §§ 841 and 846. He
appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a
reduction of sentence based on the United States Sentencing Commission’s
adoption of Amendment 706, which modified the sentencing ranges applicable
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-50485
to crack cocaine offenses. See United States Sentencing Commission, Guidelines
Manual, Supp. to Appendix C, Amendment 706, p. 226-31 (Nov. 1, 2007)
(amending U.S.S.G. § 2D1.1(c)). He also moves this court for leave to proceed in
forma pauperis (IFP) on appeal.
Pursuant to § 3582(c)(2), a defendant may have his sentence modified if
he was sentenced to a term of imprisonment based upon a sentencing range that
subsequently was lowered by the Sentencing Commission. § 3582(c)(2). We
review the denial of a § 3582(c)(2) motion for abuse of discretion. See United
States v. Shaw, 30 F.3d 26, 28 (5th Cir. 1994).
Jones argues that the district court erred in denying his § 3582(c) motion
because, pursuant to Amendment 505 of the Guidelines, the base offense level
for his offense could not exceed 38. He concedes in his reply brief, however, that
his properly recalculated offense level was 40 and that although Amendment 706
lowered his offense level by two levels, the reduction had no effect on his
ultimate sentencing range. See § 3582(c)(2); U.S.S.G. § 1B1.10(a)(2)(B); U.S.S.G.
Ch. 5, Pt. A., Sentencing Table. We do not consider Jones’s arguments made for
the first time in his reply brief that the district court nevertheless abused its
discretion in denying his motion because it failed to consider United States v.
Booker, 543 U.S. 220 (2005), United States v. Kimbrough, 128 S. Ct. 558 (2007),
and the 18 U.S.C. § 3553(a) sentencing factors. See Cinel v. Connick, 15 F.3d
1338, 1345 (5th Cir. 1994); Taita Chem. Co. Ltd. v. Westlake Styrene Corp, 246
F.3d 377, 384 n.9 (5th Cir. 2001). Neither do we consider his arguments made
for the first time in his reply brief that the enhancements to his offense level
violated his Sixth Amendment rights and that he should have been appointed
counsel in connection with his § 3582(c) proceedings. See id.
The district court properly held that Jones was ineligible for a sentence
reduction because the amendment did not reduce his advisory guidelines range.
See § 3582(c)(2); § 1B1.10(a)(2)(B). The district court’s judgment is AFFIRMED.
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No. 08-50485
Jones’s motion to proceed IFP on appeal is DENIED AS MOOT because the
district court has already granted Jones permission to proceed IFP on appeal.
3