United States v. Montgomery

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-60693

Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

RONNIE MONTGOMERY, Defendant-Appellant.

Appeal from the United States District Court For the Northern District of Mississippi 3:01-CV-61-S

May 3, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Ronnie Montgomery appeals the district court’s denial of his

motion, contending that the district court improperly construed his

18 U.S.C. § 3582(c)(2) motion as a 28 U.S.C. § 2255 motion. In his

motion Montgomery referred to § 3582(c)(2) and requested a

reduction of sentence. We accept Montgomery’s assertion that he

raised his claims under 18 U.S.C. § 3582(c)(2) and address his

claims under that statute.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. The district court may modify a defendant’s term of

imprisonment “in the case of a defendant who has been 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).”1 Montgomery claims that the Supreme Court’s

decision in Apprendi v. New Jersey2 constituted a change in

Sentencing Guidelines for which he should receive relief. He has

not identified a sentencing range that has subsequently been

lowered by the Sentencing Commission, and thus the district court

did not have authority to reduce his sentence under § 3582(c)(2).

Montgomery does not assert that his claims of ineffective

assistance of counsel or his assertions regarding his completion of

prison rehabilitation programs set forth grounds for a reduction of

sentence, and any such claim is deemed abandoned. AFFIRMED on

alternative grounds.

1 18 U.S.C. § 3582(c)(2). 2 530 U.S. 466 (2000).