     Case: 08-10416 Document: 00511307228 Page: 1 Date Filed: 11/30/2010




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

                                                 FILED
                                                                         November 30, 2010
                                     No. 08-10416
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

TERRY RICHARDSON, also known as Freeze

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:93-CR-166-7


Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Terry Richardson, federal prisoner # 24513-077, appeals pro se from the
district court’s 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.
A district court’s decision whether to reduce a sentence is reviewed for an abuse
of discretion, and its interpretation of the Guidelines is reviewed de novo.
United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert. denied, 130 S. Ct.
3462 (2010). A district court may reduce “a term of imprisonment based on a

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-10416 Document: 00511307228 Page: 2 Date Filed: 11/30/2010

                                   No. 08-10416

sentencing range that has subsequently been lowered by the Sentencing
Commission.” § 3582(c)(2). A reduction is not authorized if the amendment does
not have the effect of lowering the defendant’s guidelines range.          U.S.S.G.
§ 1B1.10(a)(2)(B), p.s.; United States v. Carter, 595 F.3d 575, 578-80 (5th Cir.
2010). Because Richardson was held accountable for sentencing purposes for
more than 4.5 kilograms of crack cocaine, a sentence reduction was not
permitted. See § 2D1.1, comment. (n.10(D)(ii)) (providing that “[t]he 2-level
reduction provided in subdivision (i) shall not apply in a case in which . . . the
offense involved 4.5 kg or more . . . of cocaine base”); Carter, 595 F.3d at 578-80.
To the extent that Richardson seeks to challenge the calculation of the drug
quantity attributable to him for sentencing purposes, that issue is beyond the
scope of the guideline amendment and is not cognizable in a § 3582(c)(2)
proceeding. See Evans, 587 F.3d at 674; United States v. Whitebird, 55 F.3d
1007, 1011 (5th Cir. 1995).
      Richardson argues that § 1B1.10 conflicts with United States v. Booker,
543 U.S. 220 (2005), and impermissibly restricts consideration of the 18 U.S.C.
§ 3553(a) factors. Richardson’s arguments regarding Booker are foreclosed by
Dillon v. United States, 130 S. Ct. 2683, 2691-94 (2010), and United States v.
Doublin, 572 F.3d 235, 238-39 (5th Cir.), cert denied, 130 S. Ct. 517 (2009).
      Lastly, the district court did not abuse its discretion in declining to appoint
counsel for Richardson and in denying Richardson’s motion for a reduction in
sentence without conducting an evidentiary hearing. See Dickens v. Lewis, 750
F.2d 1251, 1255 (5th Cir. 1984); F ED. R. C RIM. P. 43(b)(4); Whitebird, 55 F.3d at
1010-11.
      The judgment of the district court is AFFIRMED.




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