United States v. Mundrall Lewis

Case: 09-10345 Document: 00511283463 Page: 1 Date Filed: 11/03/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
November 3, 2010
No. 09-10345
Summary Calendar Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MUNDRALL MARIO LEWIS,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:06-CR-13-1

Before WIENER, PRADO and OWEN, Circuit Judges.
PER CURIAM:*
Mundrall Mario Lewis, federal prisoner # 27450-077, pleaded guilty to
possession with the intent to distribute crack cocaine. Lewis filed a pro se
motion for a reduction of his sentence under 18 U.S.C. § 3582(c)(2) in which he
sought a modification of his sentence due to a retroactive amendment to the
Sentencing Guidelines for crack cocaine offenses. Lewis appeals the district
court’s denial of his motion. The Government has filed a motion for dismissal or
summary affirmance or, alternatively, for an extension of time within which to

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10345 Document: 00511283463 Page: 2 Date Filed: 11/03/2010

No. 09-10345

file a brief. The district court’s denial of Lewis’s motion is reviewed for an abuse
of discretion. See United States v. Anderson, 591 F.3d 789, 790-91 & n.6 (5th
Cir. 2009).
Lewis’s guideline range was not derived from the quantity of crack cocaine
involved in the offense, but rather from his career offender status. “The crack
cocaine guideline amendments do not apply to prisoners sentenced as career
offenders.” Anderson, 591 F.3d at 791. Accordingly, the district court did not
abuse its discretion in concluding that a reduction was not permitted under
§ 3582(c)(2). See id. Lewis’s argument that the district court had the discretion
to reduce his sentence in light of Booker, also is unavailing. See United States
v. Doublin, 572 F.3d 235, 238 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009); see
also Anderson, 591 F.3d at 791.
Lewis also argues that he had a right to counsel in the district court. In
United States v. Whitebird, 55 F.3d 1007, 1010-11 (5th Cir. 1995), this court held
that a § 3582(c)(2) movant had no right to the appointment of counsel in the
district court. This court recently reaffirmed Whitebird’s reasoning. See United
States v. Hereford, No. 08-10452, 2010 WL 2728780 (5th Cir. July 12, 2010).
Further, because Lewis was not eligible for relief under § 3582(c)(2) due to his
career offender status, the proceedings in the district court did not involve the
potential for resentencing. Thus, appointment of counsel was not warranted
under the interests of justice. Cf. United States v. Robinson, 542 F.3d 1045, 1052
(5th Cir. 2008) (appointing counsel in the interests of justice due to complexity
of § 3582(c)(2) motion).
Lewis has not shown error in either the denial of his § 3582(c)(2) motion
or the denial of his request for counsel in the district court. Accordingly, the
Government’s motion for summary affirmance is GRANTED and the judgment
of the district court is AFFIRMED. The Government’s alternative motion ise
DENIED as unnecessary.

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