Case: 12-10107 Document: 00511899533 Page: 1 Date Filed: 06/26/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 26, 2012
No. 12-10107
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MICHAEL ANTHONY DAVIS,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CR-111-2
Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Michael Anthony Davis, federal prisoner # 33896-177, appeals the denial
of his 18 U.S.C. § 3582(c)(2) motion, in which he argued that he was entitled to
reduction in sentence pursuant to Amendment 750 to the United States
Sentencing Guidelines. Davis was convicted in 2005 of conspiring to possess and
distribute cocaine and distributing cocaine base and was sentenced at the bottom
of the applicable guidelines range to 360 months of imprisonment.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-10107 Document: 00511899533 Page: 2 Date Filed: 06/26/2012
No. 12-10107
Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence “in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered
by the Sentencing Commission pursuant to 28 U.S.C. 994(o).” § 3582(c)(2); see
United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009). We review the
district court’s decision whether to reduce a sentence under § 3582(c)(2) for
abuse of discretion and the district court’s interpretation of the Guidelines de
novo. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009).
Although application of the amendment at issue would reduce Davis’s base
offense level, it would not alter the sentencing guidelines range upon which his
sentence was based. Accordingly, because Davis’s sentencing guidelines range
would remand unchanged at 360 months to life imprisonment, § 3582(c)(2) does
not authorize a reduction in his sentence. See U.S.S.G. § 1B1.10(a)(2)(B), p.s.,
comment. (n.1(A)).
To the extent that Davis challenges the application of a sentencing
enhancement and the determination that he was responsible for 2.7 kilograms
of cocaine base, a § 3582(c)(2) motion “is not a second opportunity to present
mitigating factors to the sentencing judge, nor is it a challenge to the
appropriateness of the original sentence.” United States v. Whitebird, 55 F.3d
1007, 1011 (5th Cir. 1995).
AFFIRMED.
2