United States v. Terry Richardson , 402 F. App'x 972 ( 2010 )

Case: 08-10416 Document: 00511307228 Page: 1 Date Filed: 11/30/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 30, 2010
No. 08-10416
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
TERRY RICHARDSON, also known as Freeze
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:93-CR-166-7
Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Terry Richardson, federal prisoner # 24513-077, appeals pro se from the
district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence
reduction based on the crack cocaine amendments to the Sentencing Guidelines.
A district court’s decision whether to reduce a sentence is reviewed for an abuse
of discretion, and its interpretation of the Guidelines is reviewed de novo.
United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert. denied, 130 S. Ct.
3462 (2010). A district court may reduce “a term of imprisonment based on a
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-10416 Document: 00511307228 Page: 2 Date Filed: 11/30/2010
No. 08-10416
sentencing range that has subsequently been lowered by the Sentencing
Commission.” § 3582(c)(2). A reduction is not authorized if the amendment does
not have the effect of lowering the defendant’s guidelines range. U.S.S.G.
§ 1B1.10(a)(2)(B), p.s.; United States v. Carter, 595 F.3d 575, 578-80 (5th Cir.
2010). Because Richardson was held accountable for sentencing purposes for
more than 4.5 kilograms of crack cocaine, a sentence reduction was not
permitted. See § 2D1.1, comment. (n.10(D)(ii)) (providing that “[t]he 2-level
reduction provided in subdivision (i) shall not apply in a case in which . . . the
offense involved 4.5 kg or more . . . of cocaine base”); Carter, 595 F.3d at 578-80.
To the extent that Richardson seeks to challenge the calculation of the drug
quantity attributable to him for sentencing purposes, that issue is beyond the
scope of the guideline amendment and is not cognizable in a § 3582(c)(2)
proceeding. See Evans, 587 F.3d at 674; United States v. Whitebird, 55 F.3d
1007, 1011 (5th Cir. 1995).
Richardson argues that § 1B1.10 conflicts with United States v. Booker,
543 U.S. 220 (2005), and impermissibly restricts consideration of the 18 U.S.C.
§ 3553(a) factors. Richardson’s arguments regarding Booker are foreclosed by
Dillon v. United States, 130 S. Ct. 2683, 2691-94 (2010), and United States v.
Doublin, 572 F.3d 235, 238-39 (5th Cir.), cert denied, 130 S. Ct. 517 (2009).
Lastly, the district court did not abuse its discretion in declining to appoint
counsel for Richardson and in denying Richardson’s motion for a reduction in
sentence without conducting an evidentiary hearing. See Dickens v. Lewis, 750
F.2d 1251, 1255 (5th Cir. 1984); F ED. R. C RIM. P. 43(b)(4); Whitebird, 55 F.3d at
1010-11.
The judgment of the district court is AFFIRMED.
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