Case: 08-10749 Document: 00511281653 Page: 1 Date Filed: 11/02/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 2, 2010
No. 08-10749
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ARTHUR MOORE, JR
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:06-CR-23-4
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Arthur Moore, Jr., federal prisoner # 34590-177, appeals the district
court’s order granting his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence.
Moore argues that the district court erred by implicitly determining that it could
not resentence him below the modified guidelines sentence range. Citing United
States v. Hicks, 472 F.3d 1167 (9th Cir. 2007), he maintains that United States
v. Booker, 543 U.S. 220 (2005), and Kimbrough v. United States, 552 U.S. 85
(2007), apply to § 3582(c)(2) proceedings and make the guidelines sentence range
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 08-10749
advisory only. Moore asserts that, even after the guideline amendments, the
crack to powder ratio in the Guidelines is unreasonable and that he should be
resentenced using a 20-1 ratio. He maintains that the district court committed
procedural error by not giving a sufficient explanation for the sentence and by
not holding an evidentiary hearing. Moore additionally argues that the district
court erred by denying his motion for appointment of counsel, and he moves for
appointment of counsel on appeal.
We review the district court’s decision for abuse of discretion. United
States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462
(2010). District courts are limited to the reduction in a sentence allowed by the
two-level decrease in a defendant’s offense level; they may not depart
downwardly from the resulting offense level. United States v. Doublin, 572 F.3d
235, 236 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). Moore’s argument based
on Booker and Kimbrough therefore is unavailing, and the district court did not
err by implicitly determining that it could not resentence Moore below the
recalculated guidelines sentence range. See id.
The district court was not required to give any reasons for the sentence,
and, therefore, it did not abuse its discretion by failing to give sufficient reasons
for the sentence. See United States v. Evans, 587 F.3d 667, 674 (5th Cir. 2009),
cert. denied, 130 S. Ct. 3462 (2010). Moore did not have a right to be present at
the § 3582(c) proceeding. See F ED. R. C RIM. P. 43(b)(4). As Moore has not
challenged the district court’s guidelines sentence range calculation, he has not
shown that a factual dispute existed, and the district court did not abuse its
discretion by not holding an evidentiary hearing. See United States v. Jones, 370
F. App’x 477, 478 (5th Cir. 2010), petition for cert. filed (June 10, 2010) (No.
09-11346).
There is no right to appointed counsel in a § 3582(c)(2) proceeding. United
States v. Whitebird, 55 F.3d 1007, 1010-11 (5th Cir. 1995); United States v.
Hereford, No. 08-10452, 2010 WL 2782780 at *1-*2 (5th Cir. July 12, 2010)
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No. 08-10749
(unpublished). Moreover, the interest of justice did not require the appointment
of counsel because Moore’s § 3582(c)(2) motion did not involve complicated or
unresolved issues. Cf. United States v. Robinson, 542 F.3d 1045, 1052 (5th Cir.
2008). The district court did not err by denying Moore’s motion for appointment
of counsel, and we decline to appoint counsel on appeal for the same reasons.
AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.
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