IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 31, 2009
No. 08-10650
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
SIDNEY LEUDEO CAICEDO, also known as Aron Borrero
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:98-CR-206-2
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Sidney Leudeo Caicedo, federal prisoner # 79331-079, was convicted of
conspiracy to possess with the intent to distribute and distribution of cocaine, in
violation of 21 U.S.C. § 846. He appeals the district court’s denial of his 18
U.S.C. § 3582(c)(2) motion, which seeks a two-level sentencing reduction based
on the retroactive Amendment 706 to the crack cocaine guidelines. The district
court denied the motion on the ground that Caicedo was held accountable only
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-10650
for powder cocaine. We review the district court’s denial of a § 3582(c)(2) motion
for abuse of discretion. United States v. Boe, 117 F.3d 830, 831 (5th Cir. 1997).
Caicedo renews his argument that he was entitled to a sentencing
reduction based on the retroactive crack cocaine amendments; he asserts that
his original indictment and the offense conduct involved crack cocaine. Although
the initial indictment alleged offenses involving both powder and crack cocaine,
Caicedo pleaded guilty to a superseding indictment that alleged offenses
involving only powder cocaine. The presentence report (PSR) also indicates that
Caicedo’s offense level was calculated based upon a quantity of cocaine, not crack
cocaine. As the district court correctly determined, because Caicedo’s guidelines
range was not derived from a quantity of crack cocaine, he was not “sentenced
to a term of imprisonment based on a sentencing range that ha[d] subsequently
been lowered by the Sentencing Commission.” See § 3582(c)(2). To the extent
Caicedo challenges the validity of the superseding indictment, such a claim is
not cognizable in a § 3582(c)(2) motion. See § 3582(c)(2); United States v. Shaw,
30 F.3d 26, 29 (5th Cir. 1994).
AFFIRMED.
2