United States v. Gracie Walker , 399 F. App'x 945 ( 2010 )

Case: 09-10065 Document: 00511278788 Page: 1 Date Filed: 10/29/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 29, 2010
No. 09-10065
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GRACIE WALKER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:07-CR-3-7
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Gracie Walker, federal prisoner # 35712-177, appeals the denial of her mo-
tion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). She pleaded
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10065 Document: 00511278788 Page: 2 Date Filed: 10/29/2010
No. 09-10065
guilty to conspiracy to distribute a controlled substance and was sentenced un-
der the career offender provision, U.S.S.G. § 4B1.1, to 290 months of imprison-
ment.
Walker contends that Amendment 709 to the sentencing guidelines applies
retroactively to her criminal history calculation because the amendment became
effective while her case was pending on direct appeal. She asserts that under
several subsections of § 4A1.2, as amended by Amendment 709, criminal history
points were improperly assigned to her sentences.
The decision whether to reduce a sentence under § 3582(c)(2) is discre-
tionary, so the denial of a § 3582(c) motion is reviewed for abuse of that discre-
tion. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert. denied, 130
S. Ct. 3462 (2010). The district court is authorized to reduce a sentence based
on a sentencing range that subsequently was lowered by the Sentencing Com-
mission only if the amendment to the guidelines is listed in U.S.S.G. § 1B1.10(c).
See § 3582(c)(2); § 1B1.10(a)(1); § 1B1.10, comment. (n.1(A)); United States v.
Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). Amendment 709 is not
listed in § 1B1.10(c), so the district court was not authorized to reduce the sen-
tence pursuant to § 3582(c)(2), and the denial of the motion was not an abuse of
discretion. See Evans, 587 F.3d at 672, 674.
Walker’s motion for the appointment of counsel is DENIED. There is no
right to appointed counsel in a § 3582(c)(2) proceeding. United States v. White-
bird, 55 F.3d 1007, 1010-11 (5th Cir. 1995). Moreover, because the district court
was not authorized to grant § 3582(c)(2) relief, the interest of justice does not re-
quire appointment of counsel. Cf. United States v. Robinson, 542 F.3d 1045,
1052 (5th Cir. 2008) (finding that the interest of justice required the appoint-
ment of counsel where appeal raised issues not previously resolved by this
court’s precedent).
AFFIRMED.
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