United States v. Alegria-Moreno

176 F. App'x 462

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 11, 2006
• Docket: 04-20886
• Status: Unpublished

Opinion

PER CURIAM: *

Carlos Alegria-Moreno (Alegría), federal prisoner # 51120-079, appeals the denial of his 18 U.S.C. § 3582(c) motion to reduce sentence. The district court’s ruling is reviewed for an abuse of discretion. United States v. Pardue, 36 F.3d 429, 430 (5th Cir.1994).

Alegría argues that the district court abused its discretion in denying his motion, asserting that, pursuant to retroactive Amendment 484 to U.S.S.G. § 2D1.1, packing materials must be excluded from calculating drug quantities for sentencing purposes. He conclusionally states that the 163 kilograms of cocaine attributed to him in the PSR included 12.6 kilograms of duct tape and packaging and that, without those wrappings, he would have been held responsible for only 150 kilograms of cocaine, which would have reduced his total offense level and removed the possibility of a life sentence.

Even prior to Amendment 484, packaging materials were not to be included when determining the amount of drugs attributable to a defendant for sentencing purposes. See, e.g., Chapman v. United States, 500 U.S. 453, 463, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991). Because Alegría could have raised his argument on direct appeal, it is not cognizable under § 3582(c)(2). See United States v. Shaw, 30 F.3d 26, 29 (5th Cir.1994). The district court did not abuse its discretion in denying Alegria’s motion. Accordingly, its judgment is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.