IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 22, 2009
No. 08-40465
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
GARY LOUIS PORTER
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:07-CR-44-ALL
Before HIGGINBOTHAM, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM:*
Gary Louis Porter, federal prisoner # 65851-179, proceeding pro se and in
forma pauperis, pleaded guilty, pursuant to a written plea agreement, to
possession with intent to distribute approximately 52 grams of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(A). Porter was held accountable
for 123.86 grams of cocaine, 81.82 grams of cocaine base, and 5.72 grams of
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40465
methamphetamine. Pursuant to Sentencing Guideline § 2D1.1, these quantities
were converted to their marijuana equivalents, which totaled 1,672.61 kilograms
of marijuana. The district court sentenced Porter to 145 months’ imprisonment
and a five-year term of supervised release.
Porter filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255,
seeking a sentencing reduction based on the United States Sentencing
Commission’s adoption of: Amendment 706, which modified the sentencing
ranges applicable to crack-cocaine offenses to reduce the disparity between
crack-cocaine and powder-cocaine sentences; and Amendment 709, which, in
part, clarified which misdemeanor and petty offenses are counted in determining
a defendant’s criminal history points under Guideline § 4A1.2(c)(1). See U.
S.S.G., supp. to app. C, amend. 706, pp. 226-31 & amend. 709, pp. 235-41 (1 Nov.
2007) (amending Guideline §§ 2D1.1(c) and 4A1.2). The district court construed
Porter’s motion as being under 18 U.S.C. § 3582(c)(2) and denied it.
Porter appeals that denial, asserting the court erred in: construing his
motion as arising under § 3582(c); and denying his request for a sentence
reduction based on Amendment 709. He does not re-urge his claim that his
sentence should be reduced based on Amendment 706 or otherwise challenge the
district court’s determination that the application of Amendment 706 would not
reduce his sentence. Accordingly, that issue is deemed abandoned. See Yohey
v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); see also F ED. R. A PP. P. 28(a)(9).
Porter fails to demonstrate the district court improperly construed his
motion as arising under § 3582(c). As a general rule, “review of the merits of a
federal prisoner’s claim is not circumscribed by the label attached” to the claim;
accordingly, the “essence” of the claim, rather than its title, controls. United
States v. Santora, 711 F.2d 41, 42 n.1 (5th Cir. 1983). Under § 3582(c), a
defendant may have his sentence modified if he was sentenced to a term of
imprisonment based upon a sentencing range that subsequently was lowered by
the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Because Porter claimed
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No. 08-40465
that his sentence should be reduced based on amendments to the Sentencing
Guidelines, he has failed to show the district court improperly construed his
motion as being under § 3582(c).
The decision whether to reduce a sentence under § 3582(c)(2) is
discretionary; accordingly, the denial of a § 3582(c) motion is reviewed for abuse
of that discretion. See United States v. Boe, 117 F.3d 830, 831 (5th Cir. 1997).
Section 3582(c)(2) applies only to retroactive Guidelines amendments, as set
forth in Guideline § 1B1.10(a) (the Guidelines policy statement regarding
reduction in term of imprisonment for amended Guideline ranges). United
States v. Shaw, 30 F.3d 26, 28-29 (5th Cir. 1994). The Sentencing Commission
has stated that, unless an amendment is listed in Guideline § 1B1.10(c), a
reduction based on that amendment under § 3582(c) is not consistent with
Guideline §1B1.10's policy statement. See U.S.S.G. § 1B1.10, cmt. n.1(A) (May
2008). Amendment 709 is not listed in § 1B1.10(c) as an amendment covered by
the policy statement. See U.S.S.G. § 1B1.10(c) (May 2008).
Insofar as Porter contends Amendment 709 is a clarifying amendment that
should be applied retroactively, even though it is not listed in Guideline
§ 1B1.10(c), this court has held that, except on direct appeal, a clarifying
amendment is not to be applied retroactively unless the amendment is listed in
Guideline § 1B1.10(c). See United States v. Drath, 89 F.3d 216, 217-18 (5th Cir.
1996). Moreover, even if Amendment 709 had been retroactively applied,
Porter’s criminal history category would have remained a category II, and his
Guidelines sentencing range would have remained unchanged. See U.S.S.G. Ch.
5, Pt. A.
Accordingly, the judgment is AFFIRMED. The Government’s motion to
unseal the record is DENIED as unnecessary.
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