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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
2