     Case: 13-30007       Document: 00512432060         Page: 1     Date Filed: 11/06/2013




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

                                                                            FILED
                                                                         November 6, 2013
                                     No. 13-30007
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

FRANK HUGHES,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 5:95-CR-50071-10


Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM:*
       Proceeding pro se and in forma pauperis, Frank Hughes, federal prisoner
#04160-043, appeals the denial of his 18 U.S.C. § 3582(c)(2) motion for a
reduction in sentence pursuant to Amendment 750 to the Sentencing Guidelines.
       Following his 1996 conviction of conspiracy to distribute cocaine and in
excess of 50 grams of cocaine base (crack cocaine), Hughes was sentenced, inter
alia, to 324 months’ imprisonment. In 2010, however, following retroactive
Amendment 706 to the Guidelines for cocaine base, the court determined

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 13-30007      Document: 00512432060      Page: 2     Date Filed: 11/06/2013

                                   No. 13-30007

Hughes’ amended Guidelines sentencing range was 262 to 327 months’
imprisonment. Pursuant to § 3582(c)(2), the sentence was reduced to 262
months.
      For the motion at issue following retroactive Amendment 750 in 2011, the
court determined no further reduction of the sentence was warranted under
§ 3582(c)(2) because the amendment did not lower Hughes’ Guidelines
sentencing range below that applicable following Amendment 706.
      Hughes contends the court based its recalculation of his Guidelines
sentencing range on erroneous drug quantities.               Relying on a strained
interpretation of the sentencing transcript, he contends the sentencing court
held him responsible only for 1.6237 kilograms of cocaine base and no amount
of powder cocaine, and any attempt to hold him accountable for the latter would
be contrary to that court’s explicit findings of fact.
      This court reviews a decision regarding “whether to reduce a sentence
pursuant to . . . § 3582(c)(2) for abuse of discretion”. United States v. Henderson,
636 F.3d 713, 717 (5th Cir. 2011) (citation and internal quotation marks
omitted). “A district court abuses its discretion if it bases its decision on an error
of law or a clearly erroneous assessment of the evidence.” Id. (citation and
internal quotation marks omitted).
      A two-step analysis applies in § 3582(c)(2) proceedings. Dillon v. United
States, 560 U.S. 817, 130 S. Ct. 2683, 2691 (2010). First, the court must
determine the “[G]uideline range that would have been applicable to the
defendant if the relevant amendment had been in effect at the time of the initial
sentencing”. United States v. Hernandez, 645 F.3d 709, 711 (5th Cir. 2011); see
Dillon, 130 S. Ct. at 2691. Second, if defendant is eligible for a sentence
modification, then the court must consider the applicable § 3553(a) sentencing
factors to determine whether modification is warranted. Hernandez, 645 F.3d
at 711-12; see Dillon, 130 S. Ct. at 2692.



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    Case: 13-30007    Document: 00512432060    Page: 3   Date Filed: 11/06/2013

                                No. 13-30007

      Hughes’ attempt to relitigate the facts underlying his original sentence
exceeds the scope of a § 3582(c)(2) proceeding. Hernandez, 645 F.3d at 711.
Because Amendment 750 did not lower Hughes’ applicable Guidelines
sentencing range, the court did not abuse its discretion by denying his motion.
      AFFIRMED.




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