United States v. Surasky ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50624
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID GREGORY SURASKY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-90-CR-76-1-JN
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March 10, 2000
Before HIGGINBOTHAM, DeMOSS and STEWART, Circuit Judges:
PER CURIAM:*
David Gregory Surasky appeals the sentence imposed on him after the district court granted
his motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2).
Surasky argues that the district court erred in sentencing him pursuant to U.S.S.G. § 2D1.1
rather than § 2D1.11. The Government argues that this issue was not properly before the district
court. Regardless, we conclude that § 2D1.1 was the appropriate guideline for Surasky’s sentencing.
See United States v. Leed, 981 F.2d 202, 207 (5th Cir. 1993); United States v. O’Leary, 35 F.3d 153,
155 (5th Cir. 1994); § 2D1.11(c)(1) (cross-referencing § 2D1.1).
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Surasky argues that in two instances the district court should have sentenced him on the basis
of a methamphetamine mixture, not pure methamphetamine. However, Surasky did not meet his
burden of offering evidence that the information relied on by the district court, presented to it in an
Amended Addendum to Surasky’s presentence report, was unreliable or untrue. See United States
v. Vital, 68 F.3d 114, 120 (5th Cir. 1995).
Surasky also argues that the district court erred by (I) sent encing him on the basis of d-
methamphetamine rather than l-methamphetamine and (ii) declining to grant him a downward
departure on the basis of time served before his original sentencing. These issues, which do not relate
to any retroactive guidelines amendments, are not cognizable in a § 3582(c)(2) proceeding. United
States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994); § 1B1.10, comment. (backg’d).
AFFIRMED.