United States v. Wesley Wilson , 400 F. App'x 911 ( 2010 )

Case: 08-10622 Document: 00511285025 Page: 1 Date Filed: 11/04/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 4, 2010
No. 08-10622
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
WESLEY JAMES WILSON, also known as Wes,
Defendant–Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:92-CR-141-6
Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Wesley James Wilson, federal prisoner # 23795-077, appeals the district
court’s denial of his motion pursuant to 18 U.S.C. § 3582(c)(2) to reduce his
sentence for drug trafficking conspiracy, possession with intent to manufacture
and distribute cocaine base, and money laundering. Wilson also moves to amend
his appellate brief. To the extent that the motion to amend constitutes Wilson’s
amended brief, the motion is granted; to the extent that the motion seeks
permission to file an additional brief or memorandum of law, the motion is
denied.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 08-10622 Document: 00511285025 Page: 2 Date Filed: 11/04/2010
No. 08-10622
Wilson argues that he is entitled to a sentence reduction under § 3582(c)(2)
based on Amendments 706 and 711 to the United States Sentencing Guidelines.
However, because he was held accountable for more than 4.5 kilograms of
cocaine base, Amendment 706 to the Sentencing Guidelines, as amended by
Amendment 711, both of which modified the sentencing ranges applicable to
crack cocaine offenses, did not change his sentencing range.
U.S.S.G.§ 2D1.1(c)(1); see also id. cmt. n.10(D)(ii).
Wilson also argues that he is entitled to a sentence reduction under
§ 3582(c)(2) based on the district court’s incorrect drug quantity determination
and the fact that the jury did not make a finding concerning the drug quantity
attributed to him at sentencing. However, a motion under § 3582(c)(2) “is not a
second opportunity to present mitigating factors to the sentencing judge, nor is
it a challenge to the appropriateness of the original sentence.” United States v.
Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995). Furthermore, this court has
recognized that United States v. Booker, 543 U.S. 220 (2005), did not alter the
mandatory character of § 1B1.10’s limitations on sentence reductions. United
States v. Doublin, 572 F.3d 235, 238 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009).
Therefore, these claims are not cognizable in a § 3582(c)(2) motion. See
Whitebird, 55 F.3d at 1011; United States v. Evans, 587 F.3d 667, 674 (5th Cir.
2009), cert. denied, 130 S. Ct. 3462 (2010).
In light of the foregoing, Russell has not shown that the district court
abused its discretion in denying his § 3582(c)(2) motion. See id. at 672.
AFFIRMED; MOTION TO AMEND BRIEF GRANTED TO EXTENT
THAT MOTION CONSTITUTES AMENDED BRIEF AND DENIED TO
EXTENT THAT MOTION SEEKS PERMISSION TO FILE NEW BRIEF OR
MEMORANDUM OF LAW.
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