United States v. Edgar Gamboa , 400 F. App'x 937 ( 2010 )

Case: 09-20066 Document: 00511286073 Page: 1 Date Filed: 11/05/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 5, 2010
No. 09-20066
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EDGAR MOSQUERA GAMBOA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:93-CR-82-3
Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Edgar Mosquera Gamboa, federal prisoner
# 60512-079, was convicted of conspiring to possess with the intent to distribute
more than five kilograms of cocaine, possessing with the intent to distribute
more than five kilograms of cocaine, and money laundering. He appeals the
denial of his 18 U.S.C. § 3582(c)(2) motion for modification of his sentence based
on three retroactive amendments to the Sentencing Guidelines. In his opening
brief, Gamboa challenges only the denial of relief under Amendment 505,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-20066
although he moves for leave to file a reply brief (which he styles a traverse) out
of time to present additional claims. Issues not raised in an appellant’s opening
brief, however, are deemed abandoned. Morgan v. Swanson, 610 F.3d 877, 884
n.10 (5th Cir. 2010).
Section 3582(c)(2) permits the court to modify a defendant’s sentence in
some instances when the Sentencing Commission lowers the applicable
Guidelines range of imprisonment after the defendant has been sentenced. See
United States v. Doublin, 572 F.3d 235, 237 (5th Cir.), cert. denied, 130 S. Ct. 517(2009); U.S.S.G. § 1B1.10, comment. (n.1A). We review the district court’s
decision whether to reduce a sentence under § 3582(c)(2) for abuse of discretion,
reviewing its application of the Guidelines de novo. United States v. Evans, 587
F.3d 667, 672 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010).
Amendment 505 has no effect on Gamboa’s Guidelines sentencing range.
That amendment lowered from 42 to 38 the maximum base offense level for drug
offenses under U.S.S.G. § 2D1.1. U.S.S.G. App. C., amend. 505 (effective Nov.
1, 1994); United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997).
Gamboa was held responsible for 392 kilograms of cocaine and accordingly
received a base offense level of 38, United States v. Gamboa, No. 94-20182, 1995
WL 534866, at *9 (5th Cir. Aug. 15, 1995), the same base offense level he would
have received under the new guideline, see U.S.S.G. § 2D1.1(c)(1).
Gamboa also contends that as charged in the indictment, the crimes do not
support the life sentences he received and that his counsel was ineffective.
Section 3582(c)(2) is not the proper vehicle for Gamboa to raise these claims. A
§ 3582(c)(2) motion cannot be used to challenge the correctness of the original
sentence. See United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995); see
also Evans, 587 F.3d at 674 (explaining that a § 3582(c)(2) motion is not the
appropriate vehicle to raise challenges to the original sentencing proceeding).
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No. 09-20066
Accordingly, the decision of the district court is AFFIRMED. Gamboa’s
motion to file a reply brief out of time is DENIED.
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