United States v. Morrison

131 F. App'x 46

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 20, 2005
• Docket: 04-50673
• Status: Unpublished

Opinion

PER CURIAM: *

Robert Lee Morrison, federal prisoner # 04133-180, appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based on Amendment 599 to the United States Sentencing Guidelines. Morrison pleaded guilty to possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1).

Morrison argues that a sentence enhancement for possession of a weapon constituted impermissible double counting in violation of Amendment 599. Morrison further contends that his sentence is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In light of Blakely and the Supreme Court’s recent decision in United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Morrison has filed a motion seeking the recall of this court’s mandate affirming Morrison’s direct criminal appeal (No. GO-51218). Morrison further requests that his case be remanded for resentencing.

Amendment 599, which amended the commentary to U.S.S.G. § 2K2.4, applies to convictions under 18 U.S.C. § 844(h) and 18 U.S.C. §§ 924(c) and 929(a). Morrison pleaded guilty to violating 18 U.S.C. § 922(g)(1), and his guideline sentencing range was computed under U.S.S.G. § 2D1.1, based upon his drug conviction. Accordingly, Amendment 599 does not apply to Morrison’s sentence. Morrison’s Apprendi, Blakely, and Booker arguments are not cognizable in the context of a 18 U.S.C. § 3582(c)(2) motion. See United States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994).

AFFIRMED; MOTION TO RECALL MANDATE DENIED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.