     Case: 08-11108 Document: 00511348274 Page: 1 Date Filed: 01/12/2011




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

                                                 FILED
                                                                          January 12, 2011
                                     No. 08-11108
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ROY PERKINS, JR., also known as Lil Roy,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 5:06-CR-23-8


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Roy Perkins, Jr., federal prisoner # 25970-077, appeals the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based on the
amendments to the crack cocaine Guideline. Perkins moves for appointment of
counsel on appeal and to file a supplemental brief. The Government moves for
summary affirmance.
       Relying on United States v. Booker, 543 U.S. 220 (2005), Perkins argues
that Booker is applicable to § 3582(c) proceedings and that the Guidelines

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 08-11108

governing § 3582(c) proceedings are advisory, not mandatory. These issues are
foreclosed. Dillon v. United States, 130 S. Ct. 2683, 2692 (2010); United States
v. Doublin, 572 F.3d 235, 236-39 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009).
      Perkins further argues that the district court abused its discretion in
denying his motion to reduce his sentence due to his career offender status
because his sentence was “based on” the cocaine base guidelines. This issue is
foreclosed. United States v. Anderson, 591 F.3d 789, 790 (5th Cir. 2009).
      In a related issue, Perkins argues that the district court clearly erred by
finding that he was a career offender. He contends that he was not a career
offender because one of the two prior controlled substance offenses used to
determine his career offender status was a conviction for simple possession and
was not a controlled substance offense. Perkins may not use his § 3582(c)(2)
motion to challenge the district court’s application of the career offender
enhancement in its calculation of his original sentence by arguing that the prior
state conviction used to impose the career offender enhancement was not a
“controlled substance offense” under § 4B1.1. See United States v. Whitebird, 55
F.3d 1007, 1011 (5th Cir. 1995); see also Doublin, 572 F.3d at 238.
      Perkins also argues that the district court abused its discretion by not fully
considering the factors in 18 U.S.C. § 3553(a) and by not making other
appropriate findings. Section 3582(c)(2) permits the discretionary modification
of a defendant’s sentence in certain cases where his guidelines range has been
subsequently lowered by the Sentencing Commission. § 3582(c)(2); Doublin, 572
F.3d at 237. In those cases, the district court may reduce the sentence after
considering the applicable factors of § 3553(a) and the pertinent guideline policy
statements. Id. Because Perkins was sentenced as a career offender, the district
court did not have the discretion to consider reducing his sentence, and so the
district court was not required to consider the § 3553(a) factors. The only finding
required was made, that Perkins was sentenced as a career offender and not
entitled to a reduction in his sentence.

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                                       No. 08-11108

       Lastly, Perkins argues that he had a right to appointed counsel in the
district court. He contends that the amendments to U.S.S.G. § 1B1.10(b)’s
procedures governing § 3582(c) proceedings have made the proceedings more
complex and so United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995)
should not be controlling.             Recently, this court suggested that “[t]he
question . . . of whether a § 3582(c)(2) motion triggers either a statutory or
constitutional right to an attorney—in either this court or the district court—is
a different question now than it was before the [2008] amendments to U.S.S.G.
§ 1B1.10(b),” because the amendments allow district courts to exercise discretion
in a § 3582(c)(2) proceeding, where previously they had none. United States v.
Robinson, 542 F.3d 1045, 1052 (5th Cir. 2008).1 Nonetheless, because Perkins
was not even eligible for a sentence reduction under § 3582(c)(2), we conclude
that the district court did not need to exercise discretion to deny his motion, and
thus he was not entitled to counsel.
       Accordingly, we DENY Perkins’s motion for appointment of counsel on
appeal because it would not serve the interests of justice. See United States v.
Robinson, 542 F.3d 1045, 1051-52 (5th Cir. 2008). His motion to file a
supplemental brief is also DENIED. The Government’s motion for summary
affirmance is GRANTED, and the judgment of the district court is AFFIRMED.




       1
          U.S.S.G. § 1B1.10(b) lays out the sentencing procedures to be followed in § 3582(c)(2)
hearings. The changes noted in Robinson are at U.S.S.G. § 1B1.10 cmt. n.1(B), which allows
district courts to exercise discretion in determining “the nature and seriousness of the danger
to any person or the community that may be posed by a reduction in the defendant's term of
imprisonment” as well as the “post-sentencing conduct of the defendant that occurred after
imposition of the original term of imprisonment.” 542 F.3d at 1052 (quoting U.S.S.G. § 1B1.10
cmt. n.1(B)(ii) and (iii)).

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