United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 20, 2005
Charles R. Fulbruge III
Clerk
No. 04-50673
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT LEE MORRISON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:00-CR-62-ALL-JRN
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Before JONES, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Robert Lee Morrison, federal prisoner # 04133-180, appeals
the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion
to reduce his sentence based on Amendment 599 to the United
States Sentencing Guidelines. Morrison pleaded guilty to
possession with intent to distribute crack cocaine, in violation
of 21 U.S.C. § 841(a)(1), and possession of a firearm by a felon,
in violation of 18 U.S.C. § 922(g)(1).
*
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this opinion should not be published and is not precedent except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. 04-50673
-2-
Morrison argues that a sentence enhancement for possession
of a weapon constituted impermissible double counting in
violation of Amendment 599. Morrison further contends that his
sentence is unconstitutional under Apprendi v. New Jersey,
530 U.S. 466 (2000), and Blakely v. Washington, 124 S. Ct. 2531
(2004). In light of Blakely and the Supreme Court’s recent
decision in United States v. Booker, 125 S. Ct. 738 (2005),
Morrison has filed a motion seeking the recall of this court’s
mandate affirming Morrison’s direct criminal appeal (No. 00-
51218). Morrison further requests that his case be remanded for
resentencing.
Amendment 599, which amended the commentary to U.S.S.G.
§ 2K2.4, applies to convictions under 18 U.S.C. § 844(h) and
18 U.S.C. §§ 924(c) and 929(a). Morrison pleaded guilty to
violating 18 U.S.C. § 922(g)(1), and his guideline sentencing
range was computed under U.S.S.G. § 2D1.1, based upon his drug
conviction. Accordingly, Amendment 599 does not apply to
Morrison’s sentence. Morrison’s Apprendi, Blakely, and Booker
arguments are not cognizable in the context of a 18 U.S.C.
§ 3582(c)(2) motion. See United States v. Shaw, 30 F.3d 26, 29
(5th Cir. 1994).
AFFIRMED; MOTION TO RECALL MANDATE DENIED.