United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 24, 2003
Charles R. Fulbruge III
Clerk
No. 02-60684
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDERICK DEMETRIUS DEBERRY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:90-CR-81
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Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Frederick Demetrius Deberry, federal prisoner # 09303-042,
appeals the denial of his pro se “Motion to Modify Term of
Imprisonment Pursuant to 18 U.S.C. § 3582(c)(2).” He contends
that the district court improperly construed his 18 U.S.C.
§ 3582(c)(2) motion as a 28 U.S.C. § 2255 motion. Liberally
construing the memorandum supporting his motion, Deberry argued
that Amendment 591 to the Sentencing Guidelines is retroactive
*
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that this opinion should not be published and is not precedent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.
No. 02-60684
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and should reduce his sentence. The district court did not
address his argument concerning Amendment 591.
Because Amendment 591 is retroactive, see U.S.S.G. § 1B1.10,
an 18 U.S.C. § 3582(c)(2) motion was the appropriate procedural
vehicle to bring that issue and therefore we accept Deberry’s
assertion that he raised his claims under 18 U.S.C. § 3582(c)(2)
and will address his assertions under that statute. The
remaining claims raised by Deberry in the district court have not
been raised on appeal, and they are therefore abandoned. See
Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999).
Deberry argued in the district court that Amendment 591 to
the Sentencing Guidelines is retroactive and should reduce his
sentence because it requires the court to “stick to the offense
of conviction when sentencing a defendant.” This is not an
accurate interpretation of the Amendment. Amendment 591 was
intended to address, inter alia, case law which supported
selection of a Chapter Two (Offense Conduct) guideline different
from that referenced in the Statutory Index (Appendix A) based on
factors other than the conduct charged in the offense of
conviction. Sentencing Guidelines Manual, App. C, pp. 29-32
(Supp. 2000).
The record reveals that Deberry was sentenced under U.S.S.G.
§ 2A4.1, the proper guideline section for kidnaping, his offense
of conviction. Because that section so directs, the district
court considered the underlying offense of rape committed during
No. 02-60684
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the kidnaping and cross-referenced to U.S.S.G. § 2A3.1 (Criminal
Sexual Assault) which resulted in a longer sentence. Amendment
591 clarifies which guideline to apply; it does not forbid cross-
references contained in the applicable guideline. Sentencing
Guidelines Manual, App. C, pp. 29-32 (Supp. 2000). Therefore,
Amendment 591 does not necessitate a reduction in Deberry’s
sentence. Consequently, the judgment of the district court is
AFFIRMED ON ALTERNATE GROUNDS.