     Case: 17-30046      Document: 00514294943         Page: 1    Date Filed: 01/04/2018




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

                                    No. 17-30046                                FILED
                                  Summary Calendar                        January 4, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JAMAL ABU SAMAK,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:91-CR-189-3


Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
       Jamal Abu Samak (Abu Samak), federal prisoner # 21826-034, appeals
the denial of a sentence reduction under 18 U.S.C. § 3582(c)(2). The district
court sentenced him to imprisonment for life for arson resulting in death and
aiding and abetting the same, in violation of 18 U.S.C. §§ 2, 34, and 844(i)
(1991), and to a concurrent term of five years of imprisonment for conspiracy




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-30046

to commit arson, in violation of 18 U.S.C. § 371. United States v. Abu Samak,
7 F.3d 1196, 1197 (5th Cir. 1993).
      Although Abu Samak invoked Amendment 591 to the Sentencing
Guidelines, which the Sentencing Commission made retroactive, see U.S.S.G.
App. C, amend. 607; U.S.S.G. § 1B1.10(d), p.s., the district court determined
that Abu Samak was ineligible for a sentence reduction because the
amendment did not actually lower Abu Samak’s guideline range, see
§ 3582(c)(2); § 1B1.10(a)(2)(B), p.s. We review that determination de novo.
United States v. Carter, 595 F.3d 575, 577 (5th Cir. 2010).
      Amendment 591 requires that a sentencing court select a Chapter Two
offense guideline listed for the statute of conviction in the Statutory Index in
Appendix A of the Guidelines. U.S.S.G. App. C, amend. 591; United States v.
Patel, 481 F. App’x 906, 907 (5th Cir. 2012). If the Statutory Index lists more
than one guideline for the statute of conviction, the court will determine which
of the referenced guideline sections is “most appropriate” based on the offense
conduct charged in the count of conviction, not relevant conduct. Amend. 591
(codified at U.S.S.G. § 1B1.2(a), comment. (n.1); U.S.S.G. App. A intro.
comment.). Also, for a conspiracy offense, a court is to consider both the
conspiracy offense guideline in U.S.S.G. § 2X1.1 and the offense guideline for
the substantive offense. Amend. 591 (codified at § 1B1.2(a)(1)).
      At Abu Samak’s initial sentencing, the district court applied U.S.S.G.
§ 2K1.4—the offense guideline listed in the 1991 Statutory Index for § 844(i),
the arson statute of conviction. Abu Samak fails to show that any offense
guideline listed in the 1991 Statutory Index for his other statutes of conviction,
such as § 34, was more “appropriate for the offense conduct charged in the
count of which the defendant was convicted.” Amend. 591 (codified at U.S.S.G.




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App. A intro. comment.); see United States v. El-Zoubi, 993 F.2d 442, 449-50
(5th Cir. 1993).
      To the extent that he argues that the district court was not allowed to
consider relevant conduct in applying the cross-reference in § 2K1.4(c) (1991),
his argument is unavailing. His arson count charged, and the jury found, that
“death resulted.” Thus, the district court did not actually apply the cross-
reference based on relevant conduct. Moreover, U.S.S.G. § 1B1.3(a) “requires
that relevant conduct be applied to determine cross references ‘unless
otherwise specified.’” United States v. Gonzales, 996 F.2d 88, 91 (5th Cir. 1993)
(quoting § 1B1.3(a)); see also § 1B1.3(a) (1991). Amendment 591 did not alter
this language, see amend. 591, and nothing in § 2K1.4(c) (1991) specifies that
relevant conduct should not be considered when applying the cross-reference.
Accordingly, Amendment 591 has no bearing on cross-references like the one
at issue here. See United States v. Ross, 37 F. App’x 714, 714 (5th Cir. 2002).
      Abu Samak also makes arguments regarding the statutory maximum for
his offense, which are misplaced. Amendment 591 directs courts to focus on
the “conduct” comprising the offense of conviction when selecting an offense
guideline, not the statutory penalty.      See amend. 591.     Consideration of
statutory limits comes into play at a later step in applying the Guidelines.
U.S.S.G. § 1B1.1(h) (1991); see U.S.S.G. §§ 5G1.1(c), 5G1.2(b) (1991). Also, to
the extent that Abu Samak contends that a departure was warranted, this, too,
is among the “‘other guideline decisions’” that the district court was required
to leave “‘unaffected’” when considering whether Amendment 591 retroactively
lowered Abu Samak’s guideline range. Dillon v. United States, 560 U.S. 817,
827 (2010) (quoting § 1B1.10(b)(2), p.s.). In addition, Abu Samak’s arguments
against consideration of relevant conduct in light of Apprendi v. New Jersey,




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530 U.S. 466 (2000), fall beyond the scope of § 3582(c)(2) proceedings. See
United States v. Doublin, 572 F.3d 235, 238 (5th Cir. 2009).
      AFFIRMED.




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