United States v. Corbin , 349 F. App'x 935 ( 2009 )


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  •           IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    October 20, 2009
    No. 08-41303
    Conference Calendar             Charles R. Fulbruge III
    Clerk
    UNITED STATES OF AMERICA
    Plaintiff-Appellee
    v.
    MICHAEL ANTHONY CORBIN
    Defendant-Appellant
    Appeal from the United States District Court
    for the Eastern District of Texas
    USDC No. 1:06-CR-127-1
    Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
    PER CURIAM:*
    Michael Anthony Corbin appeals the district court’s denial of his 
    18 U.S.C. § 3582
    (c)(2) motion to reduce his sentence based upon Amendment 706 to the
    Guidelines, which lowered the sentencing ranges for offenses involving crack
    cocaine. Corbin is serving a 70-month sentence following his guilty plea to
    conspiracy to distribute and possess with intent to distribute less than 500
    *
    Pursuant to 5 TH C IR. 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    should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
    No. 08-41303
    grams of cocaine hydrochloride and possession with the intent to distribute more
    than five grams but less than 50 grams of cocaine base.
    Section 3582 permits a defendant to move, under certain circumstances,
    for discretionary modification of his sentence if it was based on a sentencing
    range that the Sentencing Commission later lowered. See § 3582(c)(2); United
    States v. Gonzalez-Balderas, 
    105 F.3d 981
    , 982 (5th Cir. 1997). We review the
    denial of a § 3582 motion for abuse of discretion. See United States v. Boe, 
    117 F.3d 830
    , 831 (5th Cir. 1997).
    Corbin contends that because his sentence was derived from the amount
    of crack cocaine involved, he was eligible for the two-level reduction in his base
    offense level. The Government has filed a motion for summary affirmance or,
    alternatively, for an extension of time within which to file a brief.
    Converting all of the drugs that Corbin was found responsible for, save the
    crack cocaine, yields a marijuana equivalency of 114.48 kilograms. See U.S.S.G.
    § 2D1.1, comment. (n.10(D)(ii)(II)). This amount results in the same base offense
    level as Corbin’s original base offense level, which was 26. See § 2D1.1(c)(7) (a
    level 26 applies to amounts of more than 100 kilograms but less than 400
    kilograms of marijuana). After deducting three levels for Corbin’s acceptance of
    responsibility, the amended total offense level is the same as the original total
    offense level, 23. With a criminal history category of IV, Corbin’s amended
    guidelines range remains 70 to 87 months in prison. Because Corbin’s offense
    level and his guidelines sentence range were not lowered by Amendment 706, he
    was not eligible for a sentence reduction pursuant to U.S.S.G. § 1B1.10(a)(2)(B).
    See Gonzalez-Balderas, 
    105 F.3d at 982
    .
    To the extent that Corbin challenges the original drug quantity calculation
    and the use of the drug conversion tables, these challenges are not cognizable
    under § 3582(c)(2) because they are not based on a retroactive amendment to the
    Guidelines. See United States v. Shaw , 
    30 F.3d 26
    , 29 (5th Cir. 1994).
    2
    No. 08-41303
    Corbin also argues that the district court had the authority in light of
    United States v. Booker, 
    543 U.S. 220
     (2005), and its progeny to reduce his
    sentence notwithstanding the contrary policy statement set out in § 1B1.10. We
    recently rejected materially indistinguishable arguments in United States v.
    Doublin, 
    572 F.3d 235
    , 236-39 (5th Cir. 2009), petition for cert. filed (Sept. 21,
    2009) (No. 09-6657).
    The Government’s motion for summary affirmance is GRANTED, the
    Government’s motion for an extension of time is DENIED, and the judgment of
    the district court is AFFIRMED.
    3
    

Document Info

Docket Number: 08-41303

Citation Numbers: 349 F. App'x 935

Judges: Benavides, Per Curiam, Stewart, Wiener

Filed Date: 10/20/2009

Precedential Status: Non-Precedential

Modified Date: 8/2/2023