IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 23, 2009
No. 08-10501
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RAYMOND CHARLES COX
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:05-CR-81-ALL
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Raymond Charles Cox, federal prisoner # 31902-177, pleaded guilty in
2006 to one count of possession with intent to distribute five grams or more of
cocaine base (crack cocaine) and aiding and abetting in violation of 18 U.S.C. § 2
and 21 U.S.C. § 841(a)(1). He appeals the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion for a reduction of sentence based on the United States
Sentencing Commission’s adoption of Amendment 706, which modified the
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-10501
sentencing ranges applicable to crack cocaine offenses to reduce the disparity
between crack cocaine and powder cocaine sentences. See United States
Sentencing Commission, Guidelines Manual, Supp. to Appendix C, Amendment
706, p. 226-31 (Nov. 1, 2007) (amending U.S.S.G. § 2D1.1(c)). The Government
has filed a motion for summary affirmance or, alternatively, for an extension of
time in which to file a brief on the merits.
“Section 3582(c)(2) permits a district court to reduce a term of
imprisonment when it is based upon a sentencing range that has subsequently
been lowered by an amendment to the Guidelines, if such a reduction is
consistent with the policy statements issued by the Sentencing Commission.”
United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). The
decision whether to reduce a sentence under § 3582(c)(2) is discretionary, and we
review the denial of a § 3582 motion for abuse of discretion. United States v.
Boe, 117 F.3d 830, 831 (5th Cir. 1997).
Cox contends that the district court abused its discretion when it denied
his motion for a reduction of sentence because Amendment 706 applies to career
offenders sentenced pursuant to U.S.S.G. § 4B1.1. He also argues that a
mandatory application of the policy statements set forth in U.S.S.G. § 1B1.10
would violate the plain language of § 3582(c)(2), the district court’s obligation to
consider the 18 U.S.C. § 3553(a) factors, and the Supreme Court’s decisions in
United States v. Booker, 543 U.S. 220 (2005), and Kimbrough v. United States,
128 S. Ct. 558 (2007).
Cox has not shown that the district court abused its discretion in denying
his motion for a reduction of sentence. A reduction in Cox’s base offense level
under § 2D1.1 pursuant to Amendment 706 would not affect his guideline range
because the range was calculated under § 4B1.1. Because Cox’s guideline range
was not derived from the quantity of crack cocaine involved in the offense, he
was not sentenced based on a sentencing range that was subsequently lowered
by the Sentencing Commission. See § 3582(c)(2). Further, to the extent Cox
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No. 08-10501
argues that the district court had the discretion to reduce his sentence under
§ 3582(c)(2) in light of Booker, the argument is unavailing because Booker was
not “based on a retroactive amendment to the Guidelines.” See United States v.
Shaw, 30 F.3d 26, 29 (5th Cir. 1994). Therefore, the district court did not abuse
its discretion in denying Cox’s motion for a reduction of sentence.
Cox also contends the district court erred when it denied his motion for
reconsideration and clarification. Citing Rules 52(a) and 54(b) of the Federal
Rules of Civil Procedure, he argues that the district court was required to state
specific findings of fact and conclusions of law as to each claim in his § 3582(c)(2)
motion and that the court’s failure to do so precluded him from appealing the
order. The denial of a motion for reconsideration is reviewed for abuse of
discretion. Martinez v. Johnson, 104 F.3d 769, 771 (5th Cir. 1997) (F ED. R. C IV.
P. 59(e) motion); Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 38 F.3d 1404,
1408 (5th Cir. 1994) (F ED. R. C IV. P. 60(b)(6) motion).
The district court was not required to state findings of facts and
conclusions of law on its denial of Cox’s § 3582(c)(2) motion. See F ED. R. C IV. P.
52(a)(3). Further, the district court did not enter a partial judgment pursuant
to Rule 54(b). See F ED. R. C IV. P. 54(b). Therefore, the district court did not
abuse its discretion when it denied Cox’s motion for reconsideration and
clarification.
Accordingly, the district court’s judgment is AFFIRMED, the
Government’s motion for summary affirmance is GRANTED, and the
Government’s motion for an extension of time is DENIED.
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