United States v. Michael Derrow

Case: 12-40746 Document: 00512287993 Page: 1 Date Filed: 06/26/2013

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
June 26, 2013
No. 12-40746
Summary Calendar Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

MICHAEL JOSEPH DERROW,

Defendant-Appellant

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:98-CR-6-9

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Michael Joseph Derrow, federal prisoner # 03199-286, appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion seeking modification of his
480-month sentence for conspiracy to distribute and to possess with the intent
to distribute 50 grams or more of crack cocaine and possession with the intent
to distribute 50 grams or more of crack cocaine. Derrow argues that the district
court abused its discretion in denying his § 3582(c)(2) motion based on the
retroactive effects of Amendment 750 and the Fair Sentencing Act (FSA). He

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40746 Document: 00512287993 Page: 2 Date Filed: 06/26/2013

No. 12-40746

asserts that Amendment 750 and the FSA effectively raised the threshold
amount of crack cocaine necessary to trigger the statutory sentencing range of
10 years to life imprisonment under 21 U.S.C. § 841 to 280 grams and that he
was responsible for only 50 grams of crack cocaine.
Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence in certain cases in which the sentencing range has been subsequently
lowered by the Sentencing Commission. United States v. Doublin, 572 F.3d 235,
237 (5th Cir. 2009). The district court’s decision whether to reduce a sentence
under § 3582(c)(2) is reviewed for an abuse of discretion, while the court’s
interpretation of the Guidelines is reviewed de novo. United States v. Evans, 587
F.3d 667, 672 (5th Cir. 2009).
Under the amended Guidelines, Derrow was responsible for the equivalent
of 13,626.38 kilograms of marijuana, which results in a base offense level of 36.
See U.S.S.G. §2D1.1(c)(2). After Derrow’s four-level increase based on his role
in the offense, his total offense level is calculated at 40. A total offense level of
40, combined with his Category V criminal history score, results in a guidelines
range of 360 months to life imprisonment. See U.S.S.G. Ch. 5 Pt. A. At the time
of Derrow’s original sentencing, he faced the same guidelines range.
Because Derrow was not eligible for a sentence reduction under
§ 3582(c)(2), the district court did not abuse its discretion in denying Derrow’s
§ 3582(c)(2) motion. See Evans, 587 F.3d at 672. Additionally, contrary to
Derrow’s assertion, the FSA has no applicability to him because he was
sentenced before it took effect. See Dorsey v. United States, 132 S. Ct. 2321,
2335-36 (2012); United States v. Doggins, 633 F.3d 379, 384 (5th Cir. 2011).
Accordingly, the judgment of the district court is AFFIRMED.