IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 20, 2009
No. 08-30927
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MICHAEL OSHEA HEARD,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:98-CR-30011-1
Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
In 1999 Michael Oshea Heard, federal prisoner # 09888-035, was convicted
of one count of conspiracy to distribute 50 grams or more of cocaine base, two
counts of distributing 50 grams or more of cocaine base, one count of distributing
five grams or more of cocaine base, and one count of unlawful use of a
communications facility. Heard appeals the sentence imposed following the
district court’s granting of his motion for reduction of sentence pursuant to 18
*
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should not be published and is not precedent except under the limited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. 08-30927
U.S.C. § 3582(c)(2). Heard challenges the district court’s determination that it
lacked authority under § 3582(c)(2) to reduce the sentence below the amended
guidelines range and argues that, if the district court had such authority, it
erred in determining that it could not consider Heard’s assistance to the
Government as a factor under 18 U.S.C. § 3553(a), absent a motion by the
Government.
Heard argues that the holding in United States v. Booker, 543 U.S. 220
(2005), applies to § 3582(c)(2) proceedings, that § 3582(c)(2)’s requirement that
the reduction be consistent with applicable Guideline policy statements is not a
jurisdictional impediment to a sentence below the amended guidelines range,
and that the Sentencing Commission, which has the power to specify the
circumstances and amounts of sentence reductions, cannot ignore the Supreme
Court’s holdings in Booker or in Kimbrough v. United States, 516 U.S. 558
(2007), regarding the weight courts should give the § 3553(a) factors when they
impose sentences.
Heard’s arguments are foreclosed in light of our recent decision in United
States v. Doublin, 572 F.3d 235, 236-39 (5th Cir. 2009), petition for cert. filed
(Sept. 21, 2009) (No. 09-6657). Accordingly, the judgment of the district court
is AFFIRMED.
2