     Case: 09-20323 Document: 00511328514 Page: 1 Date Filed: 12/21/2010




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

                                                 FILED
                                                                         December 21, 2010
                                     No. 09-20323
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BARON VERADELL PINSON,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:96-CR-208-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Baron Veradell Pinson, federal prisoner # 75029-079, is serving a 360-
month term of imprisonment for conspiring to possess with the intent to
distribute cocaine base and possessing with the intent to distribute cocaine base.
He appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a
reduction of sentence based on the retroactive amendments to U.S.S.G. § 2D1.1,
the Sentencing Guideline for crack cocaine offenses. He also appeals the denial



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-20323

of his motion for the appointment of appellate counsel.          He requests the
appointment of counsel in this court.
      At Pinson’s original sentencing, the district court found he was a career
offender. However, Pinson was sentenced under § 2D1.1 because his career
offender offense level of 37 did not exceed the adjusted offense level of 38 that
resulted from the quantity of drugs involved in the offense. Under amended
§ 2D1.1, Pinson’s total offense level is 36, but his status as a career offender
mandates an offense level of 37. U.S.S.G. § 4B1.1(b). With a criminal history
category of VI, his sentencing range remains unchanged at 360 months to life
imprisonment. If application of an amendment reduces a defendant’s base
offense level but does not alter the sentencing guideline range on which his
sentence was based, § 3582(c)(2) does not authorize a reduction in sentence.
§ 1B1.10(a)(2)(B), p.s. The district court did not err in denying Pinson’s motion.
§ 1B1.10(a), p.s.; United States v. Anderson, 591 F.3d 789, 790-91 (5th Cir. 2009).
      Pinson’s argument that United States v. Booker, 543 U.S. 220 (2005), made
application of § 1B1.10 advisory is foreclosed. See Dillon v. United States, 130
S. Ct. 2683, 2692 (2010); United States v. Doublin, 572 F.3d 235, 238 (5th Cir.),
cert. denied, 130 S. Ct. 517 (2009). Pinson has provided no support for his
argument that the district court erred by denying his motion without requiring
the Government to respond and without ordering a new presentence report.
Pinson’s challenges to the district court’s original sentencing decisions are not
cognizable in his § 3582(c)(2) motion. See United States v. Whitebird, 55 F.3d
1007, 1010-1011 (5th Cir. 1995).
      Finally, the district court did not err in denying Pinson’s motion for the
appointment of appellate counsel. This court has previously held that there is
no right to counsel at a § 3582(c)(2) proceeding. Id. at 1010-11. 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

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                                       No. 09-20323

than it was before the [2008] amendments to U.S.S.G. § 1B1.10(b),” because
those amendments allow district courts to exercise discretion in a § 3582(c)(2)
proceeding, whereas previously they had no discretion.                    United States v.
Robinson, 542 F.3d 1045, 1052 (5th Cir. 2008).1               Nonetheless, in this case,
because Pinson is simply ineligible for a sentence reduction under § 3582(c)(2),
the district court did not have any discretion to reduce his sentence.
Accordingly, we conclude that under Whitebird, Pinson was not entitled to
counsel.
       The judgment of the district court is AFFIRMED. Pinson’s motion for the
appointment of appellate counsel is DENIED.




       1
          U.S.S.G. § 1B1.10(b) lays out the sentencing procedure 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 imprisonment.” Robinson, 542 F.3d at 1052 (quoting U.S.S.G.
§ 1B1.10 cmt. n.1(B)(ii) and (iii)).

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