     Case: 08-10452     Document: 00511170171          Page: 1    Date Filed: 07/12/2010




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

                                                 FILED
                                                                            July 12, 2010

                                       No. 08-10452                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

HENRY LAWRENCE HEREFORD

                                                   Defendant-Appellant




                   Appeal from the United States District Court
               for the Northern District of Texas, Lubbock Division
                                No. 5:04-CR-002-C

Before DAVIS, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Under 18 U.S.C. § 3582(c)(2), certain federal defendants can move for
reduction of their sentences based on amendments to the United States
Sentencing Guidelines.         Defendant Henry Lawrence Hereford (“Hereford”)
moved pro se under 18 U.S.C. § 3582(c)(2) for a reduction of his sentence in light
of the 2007 amendments to the Guideline’s crack cocaine provisions. The district
court granted his motion, but imposed a sentence at the high end of the amended
Guidelines range. Hereford appealed. We appointed counsel for Hereford to



       *
         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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-10452

brief, inter alia, whether he had a right to representation by appointed counsel
in the proceedings below. Hereford’s counsel now raises two issues: (1) whether
the district court erred in failing to appoint counsel; and (2) whether the district
court erred in failing to assign reasons for not further reducing Hereford’s
sentence. We affirm for the following reasons.
                                          I.
      Hereford did not ask the court to appoint counsel to assist him with his §
3582(c)(2) motion. We, therefore, review the district court’s failure to appoint
counsel for plain error.
                                          II.
      Hereford cites no law from this circuit that required the district court to
appoint counsel. In fact, the most directly applicable circuit authority supports
the government’s position that appointment of counsel is not required.
      In United States v. Whitebird, 55 F.3d 1007 (5th Cir. 1995), this court held
that a defendant does not have a statutory or constitutional right to appointed
counsel in § 3582(c)(2) proceedings. The defendant argued that § 3582 reduction
proceedings are “ancillary matters” under the Criminal Justice Act, id. at 1010,
which provides for appointment of counsel to represent the defendant “at every
stage of the proceedings from his initial appearance . . . through appeal,
including ancillary matters appropriate to the proceedings,”          18 U.S.C. §
3006A(c). The panel disagreed, explaining,


      A § 3582(c)(2) motion is not a second opportunity to present
      mitigating factors to the sentencing judge, nor is it a challenge to
      the appropriateness of the original sentence. Rather, it is simply
      a vehicle through which appropriately sentenced prisoners can urge
      the court to exercise leniency to give certain defendants the benefits
      of an amendment to the Guidelines.

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                                  No. 08-10452



Id. at 1011.   Concluding that a § 3582(c)(2) motion is “too far removed to be
considered ‘ancillary’ to the criminal proceeding,” the panel held that       the
defendant had no statutory right to appointed counsel under the Act. Id. The
panel also held that there is no right to appointed counsel under the Sixth
Amendment because “the constitutional right to counsel extends only through
the defendant’s first appeal.” Id. at 1011. Finally, the panel concluded that due
process did not require the appointment of counsel in that case. Id. at 1011, n.3.


                                       III.
      Hereford argues that Whitebird does not control in this case because the
governing amended guideline in his case is different from the guideline in
Whitebird’s case. The principal difference is that the amended guideline in
Whitebird’s case did not permit the sentencing judge to consider Whitebird’s
post- sentencing conduct in considering the § 3582 motion; whereas, the current
amended guideline does give the judge authority to consider post-sentencing
conduct.   Compare U.S.S.G. § 1B1.10(b) (1995) with § 1B1.10(b) (2008). See
also United States v. Robinson, 542 F.3d 1045 (5th Cir. 2008).
      No authority from other circuits has been cited that tends to undermine
Whitebird’s reasoning. At least two other circuits have relied on Whitebird to
hold that § 3582 proceedings are not ancillary proceedings under the Criminal
Justice Act even after Booker and the 2008 amendments to § 1B1.10(b) and thus
the court is not required to appoint counsel for these proceedings. United States.
v. Webb, 565 F.3d 789 (11th Cir. 2009); see also United States. v. Harris, 568
F.3d 666 (8th Cir. 2009).
                                       IV.
      The Supreme Court recently held that Booker does not apply to §
3582(c)(2) proceedings and therefore we are not required to treat U.S.S.G. §

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                                  No. 08-10452

1B1.10(b) as advisory. Dillon v. United States, 09-6338, 2010 WL 2400109
(2010). This holding is consistent with previous Fifth Circuit decisions on this
issue. See United States v. Doublin, 572 F.3d 235 (5th Cir. 2009); United States
v. Evans, 587 F.3d 667 (5th Cir. 2009).
                                        V.
      The above discussion of the authorities in this and other circuits
demonstrates that the district court’s failure to appoint counsel was not clear or
obvious error. Thus, Hereford’s challenge to the district court’s failure to appoint
counsel fails under plain error review.
                                        VI.
      Finally, Hereford argues that the district court failed to adequately
explain the reasons for not further reducing his sentence. The Government
responds that Hereford failed to preserve this issue below and that the district
court did not plainly err because binding precedent from this circuit has never
required a district court explicitly to provide a statement of reasons or discuss
the 18 U.S.C. § 3553(a) factors in ruling on a defendant’s section 3582(c)(2)
motion. We agree with the Government. See generally Evans, 587 F.3d at 671
(5th Cir. 2009) (finding that plain error is not “obvious,” “clear,” or “readily
apparent” when there is a lack of precedent) .


                                       VII.
      For the above reasons, we affirm the judgment of the district court.


AFFIRMED.




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