United States v. Nealward Taylor , 581 F. App'x 373 ( 2014 )

Case: 13-31118 Document: 00512755019 Page: 1 Date Filed: 09/03/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-31118
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
September 3, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
NEALWARD C. TAYLOR,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:13-CV-4857
USDC No. 2:09-CR-260-1
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Nealward C. Taylor, federal prisoner # 31212-034, appeals the denial of
his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence and 28 U.S.C. § 2255
motion to vacate sentence. Taylor pleaded guilty to conspiracy to distribute
and possess with intent to distribute five grams or more of cocaine base and
distribution of five grams or more of cocaine base, in violation of 21 U.S.C.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-31118 Document: 00512755019 Page: 2 Date Filed: 09/03/2014
No. 13-31118
§§ 841(a)(1) and (b)(1)(B) and 846. He was sentenced to 156 months of
imprisonment and eight years of supervised release.
We lack jurisdiction to consider Taylor’s appeal of the denial of his § 2255
motion since he failed to file a timely notice of appeal. See Bowles v. Russell,
551 U.S. 205, 208-14 (2007). We will consider Taylor’s untimely appeal of the
denial of his § 3582(c)(2) motion since the Government has waived the non-
jurisdictional requirement of a timely notice of appeal. See United States v.
Martinez, 496 F.3d 387, 388 (5th Cir. 2007).
Section 3582(c)(2) permits the modification of a defendant’s sentence
where his guidelines range has been subsequently lowered by the Sentencing
Commission. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(2)(B). Ordinarily, we review
the district court’s decision whether to reduce a sentence pursuant to
§ 3582(c)(2) for abuse of discretion. United States v. Evans, 587 F.3d 667, 672
(5th Cir. 2009). Taylor contends that he is eligible for a sentence reduction
under Amendment 750 to the Sentencing Guidelines, which implemented the
Fair Sentencing Act of 2010 (FSA) and revised the Guidelines applicable to
offenses involving cocaine base. Taylor did not raise this issue in his
§ 3582(c)(2) motion; thus, review is for plain error. See United States v. Jones,
596 F.3d 273, 276 (5th Cir. 2010).
In Amendment 750, the Sentencing Commission amended the base
offense levels for cocaine base in the drug quantity tables of U.S.S.G. § 2D1.1(c)
to conform to the FSA. U.S. Sentencing Guidelines Manual app. C., vol. III,
amend. 750, pt. C, pp. 392-94. Taylor’s guidelines range was not based on the
quantity of cocaine base pursuant to § 2D1.1(c); his guidelines range was based
on his status as a career offender pursuant to U.S.S.G. § 4B1.1. Contrary to
Taylor’s argument, his sentence was still based on the career offender
Guideline even though the district court departed below the guidelines range.
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No. 13-31118
Accordingly, he was not sentenced based on a sentencing range that was
subsequently lowered by the Sentencing Commission. See United States v.
Anderson, 591 F.3d 789, 791 (5th Cir. 2009). As to Taylor’s challenge to the
adequacy of the district court’s reasons for imposing sentence and its
consideration of the 18 U.S.C. § 3553(a) factors, a § 3582(c)(2) motion may not
be used to challenge the correctness of the defendant’s original sentence, as
Taylor attempts to do here. See Dillon v. United States, 560 U.S. 817, 831
(2010). There was no error, plain or otherwise in the district court’s denial of
Taylor’s § 3582(c)(2) motion.
The judgment of the district court is AFFIRMED.
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