United States v. Padilla ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10471
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABRAHAM PADILLA, also known as
Bene Padilla,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:94-CR-339-1-R
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December 13, 2000
Before DAVIS, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Abraham Padilla, federal prisoner # 67276-079, requests
leave to proceed in forma pauperis (IFP) in appealing from the
district court’s denial of his motion for modification of the
imposed term of imprisonment under 18 U.S.C. § 3582(c)(2).
Padilla argues that (1) the Government and arresting officers had
no search warrant when they illegally searched his residence;
(2) the district court erred in denying his motion to withdraw
his guilty plea; (3) the district court sentenced Padilla even
*
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that this opinion should not be published and is not precedent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. 00-10471
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though it had never accepted his guilty plea; (4) the amount of
drugs attributed to Padilla was not the amount provided for in
the plea agreement or consistent with the amount understood
between him and his counsel; (5) the district court impermissibly
accepted the Government’s estimate of the amount of drugs; and
(6) appellate counsel failed to order sentencing transcripts on
appeal. These claims, which are not based upon an amendment to
the Sentencing Guidelines, are not cognizable in an 18 U.S.C.
§ 3582(c)(2) motion. See, e.g., United States v.
Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997).
Padilla also seeks relief on the basis of Amendments 503 and
518 to the Sentencing Guidelines. Amendment 503, which was
effective November 1, 1994, was already in effect when Padilla
was sentenced in 1995 and therefore will not support a motion
under 18 U.S.C. § 3582(c)(2). U.S.S.G. App. C, amendment 503;
see United States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994).
Amendment 518 is not one of the amendments listed as retroactive
under U.S.S.G. § 1B1.10(c), a requirement for an 18 U.S.C.
§ 3582(c)(2) motion. Accordingly, Padilla’s claim based upon
Amendment 518 is not cognizable under 18 U.S.C. § 3582(c)(2).
See United States v. Miller, 903 F.2d 341, 349 (5th Cir. 1990).
Padilla’s appeal is without arguable merit and is thus
frivolous. Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Padilla’s request for leave to proceed IFP is DENIED, and the
appeal is DISMISSED. 5th Cir. R. 42.2.
IFP DENIED. APPEAL DISMISSED.