Case: 12-10781 Document: 00512103927 Page: 1 Date Filed: 01/07/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 7, 2013
No. 12-10781
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MICHAEL LEWIS, also known as MD,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CR-70-1
Before WIENER, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
Michael Lewis, federal prisoner # 35452-177, is serving a 240-month term
of imprisonment for distributing cocaine base. He appeals the district court’s
denial of his second motion for a reduction of his sentence under 18 U.S.C.
§ 3582(c)(2) based on the retroactive application of Amendment 750 to the
United States Sentencing Guidelines.
Lewis argues that he is eligible for a sentence reduction because the
offense of which he pleaded guilty involved crack cocaine. Section 3582(c)(2)
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10781 Document: 00512103927 Page: 2 Date Filed: 01/07/2013
No. 12-10781
permits the discretionary modification of a defendant’s sentence if he was
“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). Part A of Amendment 750 altered the base offense levels
for cocaine base in the drug quantity tables of § 2D1.1(c) and is retroactive. See
United States Sentencing Commission, Guidelines Manual, Supp. to Appendix
C-Vol. III, Amendment 750, at 391-98; 416-421 (Amendment 759).
The district court accurately noted that Lewis’s base offense level was
calculated based solely on the amount of powder cocaine attributable to him for
sentencing purposes. His sentencing guidelines range therefore was not affected
by retroactive application of Amendment 750, and the district court did not err
by denying his § 3582(c)(2) motion on that basis. The judgment of the district
court is affirmed.
We caution Lewis that filing repetitive or frivolous requests for a
§ 3582(c)(2) sentence reduction, or appeals from the denial of such requests, will
invite the imposition of sanctions. To avoid sanctions, Lewis is further cautioned
to review any pending appeals to ensure that they do not raise arguments that
are repetitive or frivolous.
AFFIRMED; SANCTION WARNING ISSUED.
2