United States v. Calvin Odom , 486 F. App'x 433 ( 2012 )

Case: 11-31098 Document: 00511959350 Page: 1 Date Filed: 08/16/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 16, 2012
No. 11-31098
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CALVIN ODOM, also known as Butch Wilson, also known as Calvin Odon,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 5:00-CR-50050
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Calvin Odom, federal prisoner # 16638-112, has filed a motion for leave to
proceed in forma pauperis (IFP) on appeal from the district court’s denial of his
18 U.S.C. § 3582(c)(2) motion for a reduction in sentence based on Amendment
706 to § 2D1.1 of the United States Sentencing Guidelines. He currently is
serving a life sentence for conspiring to commit money laundering and
conspiring to possess with intent to distribute fifty or more grams of cocaine base
and five or more kilograms of cocaine.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-31098 Document: 00511959350 Page: 2 Date Filed: 08/16/2012
No. 11-31098
The district court determined that Odom was not eligible for a § 3582(c)(2)
reduction in his sentence because Amendment 706 did not have the effect of
lowering his guidelines range of imprisonment. Odom acknowledges that fact
but argues that the district court should have granted his § 3582(c)(2) motion
based on consideration of the 18 U.S.C. § 3553(a) factors. Citing the “unique
circumstances of [his] case,” he contends that “failure to reduce his sentence
resulted in the district court’s sanctioning of a draconian and discriminatory
punishment [that violated his] rights to equal protection and due process.”
Odom asserts that his sentence was unduly harsh because it was calculated in
violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), based on an amount of
crack cocaine that was neither alleged in the indictment nor established beyond
a reasonable doubt and because he was sentenced at a time when the Guidelines
unjustly applied a 100:1 ratio in calculating sentences for defendants convicted
of crimes involving crack cocaine as opposed to powder cocaine.
Because Amendment 706 did not have the effect of lowering Odom’s
applicable guidelines range, Odom was ineligible for a sentence reduction under
§ 3582(c)(2) as a matter of law. See U.S.S.G. § 1B1.10(a)(2)(B). Thus, the
district court had no cause to determine whether a sentence reduction would be
appropriate in light of the relevant § 3553(a) factors. See Dillon v. United States,
130 S. Ct. 2683, 2691-92 (2010). Moreover, Odom’s arguments challenged
aspects of his original sentence that were not affected by Amendment 706 and
were not cognizable in a § 3582(c)(2) proceeding. See United States v.
Hernandez, 645 F.3d 709, 711-12 (5th Cir. 2011).
Odom has not shown that he will present a nonfrivolous issue with respect
to the district court’s denial of his § 3582(c)(2) motion. See Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983). Accordingly, Odom’s motion for leave to proceed
IFP on appeal is DENIED, and the appeal is DISMISSED. See 5TH CIR. R. 42.2.
2