United States v. Jessie Bustamante

675 F. App'x 498

Opinion

PER CURIAM: *

Jessie Bustamante, federal prisoner # 37141-177, was granted a reduction in sentence under 18 U.S.C. § 3582(c)(2) pursuant to Amendment 782 of the Sentencing Guidelines. He appeals the denial of his motion for reconsideration and the denial of his request for the appointment of appellate counsel.

We review the denial of the motion for reconsideration for an abuse of discretion. See United States v. Rabhan, 540 F.3d 344, 346-47 (5th Cir. 2008). Bustamante argues that he should be allowed to challenge-factual findings made at his original sentencing, particularly the issue of drug quantity. However, a § 3582(c)(2) proceeding is not a full resentencing or an opportunity to challenge the original sentence. Dillon v. United States, 560 U.S. 817, 825-26, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). Thus, claims regarding the validity of the original conviction and sentence are not cognizable in a § 3582(c)(2) motion. See United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011). Consequently, Busta-mante has shown no abuse of discretion.

He has similarly not shown an abuse of discretion on the part of the district court in denying his request for the appointment of appellate counsel. See Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007). Bustamante has not shown that the interests of justice require the appointment of appellate counsel, as he has failed to raise a nonfrivolous issue on appeal. See United States v. Blake, 408 Fed.Appx. 785, 786 (5th Cir. 2010).

Finally, Bustamante argues for the first time on appeal pursuant to § 3582(c)(2) that he is entitled to relief under Amendment 484 of the Guidelines. We generally •will not consider new theories of relief raised for the first time on appeal absent exceptional circumstances. Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). Regardless, because this issue is premised on Bustamante’s non-cognizable argument that the district court incorrectly calculated drug quantity at his original sentencing, he has shown no entitlement for relief. See Hernandez, 645 F.3d at 712.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.