     Case: 15-50924      Document: 00513696709         Page: 1    Date Filed: 09/28/2016




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

                                    No. 15-50924
                                                                                 Fifth Circuit

                                                                               FILED
                                  Summary Calendar                     September 28, 2016
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


                                                 Plaintiff-Appellee

v.

MARCUS DESHAW HICKS,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 7:10-CR-292-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Marcus Deshaw Hicks appeals following the district court’s denial of his
18 U.S.C. § 3582(c)(2) motion for a sentence reduction following an amendment
to the Sentencing Guidelines which lowered his guidelines range. In 2011,
Hicks was sentenced to 240 months of imprisonment, which sentence was (i)
within the guidelines range then applicable to Hicks’s offense, based on the
sentencing court’s finding that the offense involved 510 grams of crack cocaine


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50924

and (ii) the mandatory minimum sentence applicable to offenders who, like
Hicks, had a prior felony conviction. See 21 U.S.C. § 841(b)(1)(A). In denying
Hicks’s motion, the district court held that Hicks was “not eligible for a
reduction in sentence due to the mandatory minimum term of imprisonment
to which [he] was sentenced.”
      On appeal, Hicks argues that he is eligible for a two-level reduction in
his offense level, based on the retroactive application of the lowered offense
levels under the drug-trafficking guideline, U.S.S.G. § 2D1.1(c)(5) (Nov. 2015),
which were implemented through Amendments 782 and 788 to the Guidelines.
See U.S.S.G. Supp. to App. C, Amends. 782 and 788. Hicks further argues that,
although the sentencing court found that he was subject to a minimum
mandatory sentence of 20 years of imprisonment, the Fair Sentencing Act of
2010, Pub. L. No. 111-220, 124 Stat. 2372 (FSA), applies to him under the
Supreme Court’s holding in Dorsey v. United States, 132 S. Ct. 2321 (2012).
Because the FSA applies to him, he argues that his mandatory minimum
sentence should be 10 years instead of 20 years, because “the amount of crack
alleged in his indictment—50 grams or more—subjected him to a recidivist
minimum of 10 years, not 20 years.” Hicks further argues that the “district
court’s finding that Hicks’s relevant conduct involved 510 grams of crack did
not alter the applicable mandatory minimum,” because “[t]he mandatory
minimum is based on the amount alleged in the indictment, not the amount
found by the sentencing court.” As a result, Hicks maintains that he is eligible
for resentencing under the lowered offense levels set forth in amended § 2D1.1,
which would result in a sentencing range of 168 to 210 months.
      Section 3582(c)(2) provides that a defendant’s sentence may be modified
if he was “sentenced to a term of imprisonment based on a sentencing range
that has subsequently been lowered by the Sentencing Commission.”



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                                  No. 15-50924

§ 3582(c)(2); see United States v. Doublin, 572 F.3d 235, 237 (2009). Section
3582(c)(2) applies only to retroactive guidelines amendments as set forth in
§ 1B1.10(a).      See Dillon v. United States, 560 U.S. 817, 826 (2010).
Amendments 782 and 788 apply retroactively. See § 1B1.10(d). The Supreme
Court has prescribed a two-step inquiry for a district court that is considering
a § 3582(c)(2) motion. Dillon, 560 U.S. at 826. The district court must first
determine whether the defendant is eligible for a sentence reduction under
§ 1B1.10 and then may proceed to consider whether a reduction is warranted
in whole or in part under 18 U.S.C. § 3553(a)’s sentencing factors. Dillon, 560
U.S. at 826-27.
      This court reviews a district court’s decision “whether to reduce a
sentence pursuant to . . . § 3582(c)(2) for abuse of discretion, . . . its
interpretation of the Guidelines de novo, and its findings of fact for clear error.”
United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011) (internal
quotation marks and citation omitted). “A court abuses its discretion when the
court makes an error of law or bases its decision on a clearly erroneous
assessment of the evidence. When a court in applying its discretion fails to
consider the factors as required by law, it also abuses its discretion.” United
States v. Larry, 632 F.3d 933, 936 (5th Cir. 2011) (internal quotation marks
and citation omitted).
      Amendment 782 to the Sentencing Guidelines has the retroactive effect
of reducing Hicks’s base offense level and, by extension, his total offense level
and guidelines range. However, Hicks is not eligible for a reduction in his
sentence to the extent that the reduced sentence would be “less than any
statutorily required minimum sentence.” § 5G1.1(c)(2); see United States v.
Pardue, 36 F.3d 429, 431 (5th Cir. 1994) (holding that a mandatory minimum
statutory penalty overrides the retroactive application of a new guideline).



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      Pursuant to the Supreme Court’s holding in Dorsey, the FSA applies to
Hicks because he was sentenced after the FSA’s effective date. 132 S. Ct. at
2329. Hicks argues that, by virtue of the fact that his indictment only alleged
that he was responsible for 50 grams or more of crack cocaine, he does not meet
the 280 gram threshold required for a mandatory minimum sentence of 20
years under the FSA for offenders with a prior felony drug conviction. At the
same time, however, the sentencing court found Hicks responsible for 510
grams of crack cocaine—far in excess of the FSA’s 280 gram threshold—which
would mandate a minimum 20-year sentence regardless of the application of
the FSA. Thus, crucial to Hicks’s claim that the FSA applies to reduce Hicks’s
mandatory minimum sentence, is his argument that the drug quantity alleged
in the indictment—and not the drug quantity subject to judicial factfinding—
controls in his § 3582 proceeding.
      In support of his argument that the drug quantity alleged in the
indictment controls, Hicks cites the Supreme Court’s decision in Alleyne v.
United States, 133 S. Ct. 2151 (2013), which was handed down while Hicks’s
appeal was pending. In Alleyne, the Supreme Court held that any fact that
increases a mandatory minimum sentence for a crime is an “element” of the
crime that must be found by a jury. 133 S. Ct. 2162-63. Thus, although Hicks
grounds his § 3582(c)(2) motion in the sentencing changes wrought by
Amendment 782, his motion cannot succeed without this court’s application of
the Supreme Court’s holding in Alleyne. However, any reduction in Hicks’s
sentence based on an application of Alleyne here would impermissibly expand
the limited scope of § 3582(c)(2) proceedings for two primary reasons.
      First, while § 3582(c)(2) allows a defendant to file a motion to reduce his
sentence based on appropriate retroactive amendments to the Sentencing
Guidelines, like Amendment 782, it does not allow a defendant to seek a



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                                  No. 15-50924

reduction in his sentence based on new case law. Rather, the appropriate
method to challenge a conviction or sentence which a defendant claims is
unconstitutional under Supreme Court precedent is through a § 2255 petition.
See § 2255(a) (“A prisoner . . . claiming the right to be released upon the ground
that the sentence was imposed in violation of the Constitution or laws of the
United States . . . may move the court which imposed the sentence to vacate,
set aside or correct the sentence.”).
      Second, any aspect of Hicks’s sentence that was not affected by
Amendment 782, such as his minimum mandatory sentence, is outside the
scope of § 3582(c)(2) proceedings. See Dillon, 560 U.S. at 831 (“§ 3582(c)(2)
does not authorize a resentencing [and] instead, it permits a sentence
reduction within the narrow bounds established by the Commission”); United
States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995) (“A § 3582 motion is not
. . . a challenge to the appropriateness of the original sentence.”); United States
v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994) (observing that a § 3582(c)(2) proceeding
is not the appropriate vehicle for relitigating a sentencing issue). Hicks’s claim
that he is eligible for resentencing because his sentence was based on a drug
quantity not determined by a jury is not a claim based on a retroactive
amendment to the Sentencing Guidelines and is therefore not cognizable under
§ 3582.
      For the foregoing reasons, Hicks has not established that the district
court abused its discretion in denying Hicks’s § 3582(c)(2) motion, and the
district court’s judgment is hereby AFFIRMED.




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