United States v. Clark

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     Case: 08-50726 Document: 00511275397 Page: 1 Date Filed: 10/26/2010




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

                                                 FILED
                                                                          October 26, 2010
                                     No. 08-50726
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOHN MICHAEL CLARK,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:06-CR-26-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       In July 2006, John Michael Clark, federal prisoner # 57752-180, was
convicted by guilty plea of possession with intent to distribute cocaine base and
being a felon in possession of a firearm. He now appeals pro se from the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction based
upon the crack cocaine amendments to the Sentencing Guidelines. In that
denial, the district court noted that Clark could not benefit from the crack
cocaine amendments because his base offense level would have remained the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-50726 Document: 00511275397 Page: 2 Date Filed: 10/26/2010

                                  No. 08-50726

same even if based solely upon the amount of methamphetamine that was
attributed to him.
      On appeal, Clark argues that his sentence should have been based solely
upon crack cocaine and that the district court lacked jurisdiction to sentence him
based upon any other controlled substance. He also asserts that the district
court violated Amendment 715 to the Sentencing Guidelines by failing to show
how it calculated the amount of crack cocaine attributable to him when
considering his § 3582(c)(2) motion. These arguments lack merit. Moreover,
Clark cannot utilize a § 3582(c)(2) motion to challenge his original sentence. See
United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995).
      Examination of the record reveals that the district court correctly
concluded that Clark could not benefit from the crack cocaine amendments. The
district court therefore did not abuse its discretion by denying Clark’s instant
motion. See United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert.
denied, 130 S. Ct. 3462 (2010).
      The judgment of the district court is AFFIRMED.




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