United States v. Heli-Mejia , 239 F. App'x 938 ( 2007 )


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  •           IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 06-20092                         F I L E D
    Summary Calendar
    September 6, 2007
    UNITED STATES OF AMERICA,                                          Charles R. Fulbruge III
    Clerk
    Plaintiff-Appellee,
    versus
    JOSE HELI-MEJIA,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:91-CR-176-4
    Before JOLLY, DENNIS, and PRADO, Circuit Judges.
    PER CURIAM:*
    Jose Heli-Mejia, federal prisoner # 37528-004, has appealed the district
    court’s order denying his motion for reduction of his sentence based on
    retroactive application of Amendment 591 of the Sentencing Guidelines. We
    pretermit the question whether Heli-Mejia’s notice of appeal was timely filed.
    See United States v. Alvarez, 
    210 F.3d 309
    , 310 (5th Cir. 2000).
    *
    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    should not be published and is not precedent except under the limited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.
    No. 06-20092
    -2-
    The district court may modify an imprisonment term when a defendant
    has been sentenced based on a sentencing range that has subsequently been
    lowered. See 
    18 U.S.C. § 3582
    (c)(2); U.S.S.G. § 1B1.10(c). This court reviews
    the denial of a § 3582 motion for an abuse of discretion. United States v.
    Pardue, 
    36 F.3d 429
    , 430 (5th Cir. 1994).
    Heli-Mejia contends that his sentence should be reduced because of the
    adoption of Amendment 591 to the Sentencing Guidelines; he invokes
    Apprendi v. New Jersey, 
    530 U.S. 466
     (2000), Blakely v. Washington, 
    542 U.S. 296
     (2004), and United States v. Booker, 
    543 U.S. 220
     (2005), and reiterates
    the arguments asserted in the district court with respect to the determination
    of his base offense level.
    Amendment 591 does not lower the guidelines range applicable to Heli-
    Mejia. See U.S.S.G. App. C, Vol. II, Amend. 591. Amendment 591 does not
    apply to the determination of base (or specific) offense levels within the
    applicable offense guideline section or to any consideration of relevant
    conduct. See 
    id.
     Amendment 591 makes clear that the sentencing court
    should determine the applicable offense guideline section in Chapter Two of
    the Sentencing Guidelines based only upon the offense charged in the
    indictment for which the defendant was convicted (or upon an offense
    stipulated as part of a plea agreement), assisted by the Statutory Index. Id.;
    see U.S.S.G. § 1B1.2(a) & comment. (n.1). Because Heli-Mejia was charged
    with and convicted of violating 
    21 U.S.C. §§ 841
    (a)(1) and (b)(1)(A) and 846,
    § 2D1.1 is the applicable offense guideline section. See U.S.S.G. App. A
    (Statutory Index) (1991); U.S.S.G. § 2D1.4 (1991). Heli-Mejia’s offense level
    was determined under § 2D1.1. The district court did not abuse its discretion
    in denying Heli-Mejia’s § 3582(c) motion. The appeal is
    DISMISSED AS FRIVOLOUS.
    

Document Info

Docket Number: 06-20092

Citation Numbers: 239 F. App'x 938

Judges: Dennis, Jolly, Per Curiam, Prado

Filed Date: 9/6/2007

Precedential Status: Non-Precedential

Modified Date: 8/2/2023