United States v. Grimaldo

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 3, 2010
• Docket: 09-40103
• Status: Unpublished

Opinion

Case: 09-40103 Document: 00511283150 Page: 1 Date Filed: 11/03/2010

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

FILED November 3, 2010 No. 09-40103 Summary Calendar Lyle W. Cayce Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

THOMAS ARTHUR GRIMALDO,

Defendant - Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 3:01-CR-12-1

Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges. PER CURIAM:* Proceeding pro se, Thomas Arthur Grimaldo, federal prisoner # 44990-079, appeals the denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction based on the crack-cocaine amendments to the Sentencing Guidelines. Section 3582 provides a district court discretion to reduce a term of imprisonment if, inter alia, the “sentencing range . . . has subsequently been lowered by” amendment to the Guidelines. 18 U.S.C. § 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40103 Document: 00511283150 Page: 2 Date Filed: 11/03/2010

No. 09-40103

A district court’s decision on whether to reduce a sentence is reviewed for abuse of discretion; its interpretation of the Guidelines, de novo. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010). Eligibility for a § 3582 reduction “is triggered only by an amendment . . . that lowers the applicable guideline range”. U.S.S.G. § 1B1.10, cmt. n.1A; see United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). Due to the amount of crack-cocaine involved in Grimaldo’s offense, his offense level was not reduced by the crack-cocaine amendments. Therefore, he is not eligible for a sentence reduction under § 3582. See § 1B1.10, cmt. n.1A; Gonzalez-Balderas, 105 F.3d at 984. Grimaldo contends: the amended crack-cocaine Guideline conflicts with United States v. Booker, 543 U.S. 220 (2005), and impermissibly precludes the district court from considering the 18 U.S.C. § 3553(a) factors in reducing his sentence below the Guidelines range of imprisonment; Booker prohibits a mandatory application of the Guidelines; and an analysis of several § 3553(a) factors, including his history, characteristics, and the nature and circumstances of the offense, warrant a lower sentence. Booker does not apply to a § 3582(c)(2) proceeding. Dillon v. United States, 130 S. Ct. 2683, 2691-94 (2010); United States v. Doublin, 572 F.3d 235, 238-39 (5th Cir.), cert denied, 130 S. Ct. 517 (2009). Accordingly, a § 3582 movant is entitled, at most, to the reduction allowed by the amended Guidelines range; a sentencing court lacks discretion to reduce the sentence any further than allowed by the amendments. Doublin, 572 F.3d at 238. Because Grimaldo is not entitled to a sentence reduction based on the crack-cocaine amendments, no relief is available under § 3582. See Id. AFFIRMED.