     Case: 09-40361 Document: 00511326153 Page: 1 Date Filed: 12/17/2010




                        REVISED December 17, 2010

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

                                     No. 09-40361                        FILED
                                   Summary Calendar                 December 17, 2010

                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CEDRIC CATLIN,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 4:01-CR-32-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Cedric Catlin, federal prisoner # 09269-078, appeals the district court’s
denial of his motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2).
Catlin was convicted of conspiracy and distribution of crack cocaine. He was
held accountable for 8.095 kilograms of cocaine base and sentenced to concurrent
prison terms of 324 and 240 months.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40361

      In the instant appeal, Catlin argues that the district court appointed the
Federal Public Defender (FPD) to represent him in connection with his §
3582(c)(2) proceeding and then denied a sentence reduction before the FPD made
an appearance; that the district court violated his Sixth Amendment right to
counsel; that he was denied the right to be heard and the opportunity to file a
position paper; and that, in denying his motion, the district court failed to
consider the unjustness of the disparity in punishments between powder and
crack cocaine offenses. He further suggests that the district court improperly
failed to consider a sentence reduction under § 3582(c)(2) in light of United
States v. Booker, 543 U.S. 220 (2005), Kimbrough v. United States, 552 U.S. 85
(2007), and the 18 U.S.C. § 3553(a) factors.
      Section 3582(c)(2) allows a district court to reduce a term of imprisonment
that was “based on a sentencing range that has subsequently been lowered by”
an amendment to the Sentencing Guidelines.         Eligibility for a § 3582(c)(2)
reduction “is triggered only by an amendment . . . that lowers the applicable
guideline range.”    U.S.S.G. § 1B1.10 cmt. n.1(A); see United States v.
Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). In this instance, due to
the amount of crack cocaine involved, Catlin’s offense level was not reduced by
the crack cocaine amendment of 2007. Therefore, he was not eligible for a
sentence reduction under § 3582(c)(2). See U.S.S.G. § 1B1.10 cmt. n.1(A).
      Likewise unavailing is Catlin’s argument that, based upon Booker,
Kimbrough, 552 U.S. at 98-101, and the § 3553(a) sentencing factors, the district
court should have reduced his sentence. See Dillon v. United States, 130 S. Ct.
2683, 2691-94 (2010); United States v. Doublin, 572 F.3d 235, 237-39 (5th Cir.),
cert. denied, 130 S. Ct. 517 (2009). A movant under § 3582(c)(2) is entitled at
most to the reduction allowed by the amended guidelines range, and a
sentencing court lacks discretion to reduce the sentence any further than that
allowed by the amendment. Doublin, 572 F.3d at 237-38. Because Catlin was



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                                       No. 09-40361

not entitled to a sentence reduction based on the crack amendment, no relief is
available under § 3582(c)(2). See id.
       Although Catlin argues that the district court appointed the FPD to
represent him and then denied his § 3582(c)(2) motion before the FPD’s
appearance, the document to which Catlin refers in support of this argument
references the court’s appointment of the FPD for one of his codefendants.
Catlin’s related argument that the district court violated his Sixth Amendment
right to counsel also fails. This court has previously held that there is no right
to counsel at a § 3582(c)(2) proceeding. United States v. Whitebird, 55 F.3d
1007, 1010-11 (5th Cir. 1995). However, more recently, this court has 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 Catlin 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.
       Finally, Catlin filed a 15-page motion and memorandum in support of his
request for a sentence reduction, and was thus afforded an opportunity to make
his views known to the district court. Regarding the right to be heard, Catlin
was not entitled to be present at a hearing in connection with his § 3582(c)(2)
proceeding. See Fed. R. Crim. P. 43(b)(4); see also United States v. Patterson, 42

       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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                                 No. 09-40361

F.3d 246, 248-49 (5th Cir. 1994) (holding that a defendant does not have the
right to a hearing when the district court merely modifies an existing sentence,
rather than imposing a new sentence after the original sentence has been set
aside). More recently, in unpublished opinions, this court has held that an
evidentiary hearing is generally only required in a § 3582(c)(2) proceeding if a
factual dispute exists. United States v. Edwards, No. 97-60326, 1998 WL 546471
at *3 (5th Cir. Aug. 6, 1998) (unpublished); see United States v. Jones, 370 F.
App'x 477, 478 (5th Cir. 2010) (unpublished), petition for cert. filed (June 10,
2010) (No. 09-11346) (finding no entitlement to hearing due to the absence of a
factual dispute).    Here, Catlin has not identified any factual dispute
necessitating an evidentiary hearing. Moreover, because the district court could
not have granted a sentence reduction, any error resulting from the failure to
provide a hearing was harmless. See Fed. R. Crim. P. 52(a); United States v.
Buhl, 313 F. App'x 717, 718 (5th Cir. 2009) (unpublished) (holding that any
procedural error in denying the defendant’s § 3582(c)(2) motion was harmless
because the defendant was not eligible for a sentence reduction).
      The Government’s motion for summary affirmance is GRANTED, and the
judgment of the district court is AFFIRMED. The Government’s alternative
motion for an extension of time to file a brief is DENIED.




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