     Case: 11-10122     Document: 00511637373         Page: 1     Date Filed: 10/19/2011




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

                                                                            FILED
                                                                         October 19, 2011
                                     No. 11-10122
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ROY LEE BRADFORD,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:98-CR-217-2


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Roy Lee Bradford, federal prisoner # 10363-077, appeals the denial of his
motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). In 1999, he
was found guilty by a jury of one count of conspiracy to possess with intent to
distribute cocaine, cocaine base, and heroin, four counts of possession with intent
to distribute cocaine and aiding and abetting, one count of possession with intent
to distribute cocaine base and aiding and abetting, two counts of possession with
intent to distribute cocaine base and aiding and abetting, and six counts of use

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10122

of a communication facility to facilitate the commission of conspiracy to
distribute a controlled substance. He was sentence to a total term of 292 months
of imprisonment. His convictions and sentences were affirmed on appeal.
      In 2008, proceeding pro se, Bradford filed a § 3582(c) motion based on
Amendment 706 to the Sentencing Guidelines. The district court granted
Bradford’s motion and reduced his sentence to 235 months in prison. In 2010,
again proceeding pro se, Bradford filed a second § 3582(c) motion, requesting a
further reduction in his sentence based on Amendment 748, which implemented
substantive provisions of the Fair Sentencing Act of 2010 (“the FSA”) in the 2010
Sentencing Guidelines, and the 18 U.S.C. § 3553(a) sentencing factors. The
district court denied relief stating that Amendment 748 was not designated as
an amendment to be given retroactive effect. On appeal, Bradford contends that
the district court erred in denying his § 3582 motion.
      The decision whether to reduce a sentence under § 3582(c)(2) is
discretionary, so the denial of a § 3582(c) motion is reviewed for abuse of that
discretion. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert.
denied, 130 S. Ct. 3462 (2010). The district court is authorized to reduce a
sentence based on a sentencing range that subsequently was lowered by the
Sentencing Commission only if the amendment to the guidelines is listed in
U.S.S.G. § 1B1.10(c). See § 3582(c)(2); § 1B1.10(a)(1); § 1B1.10, comment.
(n.1(A)); United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997).
Currently, Amendment 748, which will be redesignated as Amendment 750, is
not listed in § 1B1.10(c), so the district court was not authorized to reduce
Bradford’s sentence pursuant to § 3582(c)(2). See Evans, 587 F.3d at 672, 674.
Amendment 750 will not have retroactive effect until its effective date of
November 1, 2011. Should Bradford become eligible for a lower sentence in
November 2011, he may file a § 3582(c) motion at that time.
      Because Bradford was not eligible for a reduction under § 3582(c), the
district court did not abuse its discretion in denying his § 3582(c) motion. See

                                       2
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                                No. 11-10122

§ 1B1.10(c); Dillon v. United States, 130 S. Ct. 2683, 2691-92 (2010); United
States v. Doublin, 572 F.3d 235, 238 (5th Cir. 2009). Accordingly, the district
court’s judgment is AFFIRMED. Bradford’s motion for appointment of counsel
is DENIED.




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