     Case: 10-50890     Document: 00511506235          Page: 1    Date Filed: 06/13/2011




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

                                                 FILED
                                                                            June 13, 2011
                                     No. 10-50890
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MARK ANTHONY EVANS, also known as Mark Evans,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                               USDC No. 6:96-CR-2-1


Before WIENER, PRADO and OWEN, Circuit Judges.
PER CURIAM:*
        Mark Anthony Evans, federal prisoner # 69117-080, appeals the district
court’s order granting in part and denying in part his motion pursuant to 18
U.S.C. § 3582(c)(2) to reduce his sentence for conspiracy to distribute and
distribution of cocaine. See 21 U.S.C. §§ 841(a)(1), 846. Evans challenges the
district court’s refusal to impose a sentence below the minimum sentence under
the amended guidelines range, asserting that the district court erred in treating
U.S.S.G. § 1B1.10, p.s., as binding in a § 3582(c)(2) proceeding. Evans further

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50890        Document: 00511506235        Page: 2    Date Filed: 06/13/2011

                                       No. 10-50890

argues that the district court violated his constitutional rights by relying on drug
quantity     and    a   leadership     enhancement        in   making   its   resentencing
determination and that his constitutional rights were violated when the court
imposed sentence based upon an offense involving crack cocaine, a drug not
listed as a Schedule II controlled substance and not identified in his indictment.
      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence in certain cases where the sentencing range has been subsequently
lowered by the Sentencing Commission. United States v. Doublin, 572 F.3d 235,
237 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009); § 1B1.10(a), p.s. In those cases,
the district court may reduce the sentence after considering the applicable
factors of 18 U.S.C. § 3553(a) and the pertinent guideline policy statements.
§ 3582(c)(2). We review a district court’s decision whether to reduce a sentence
for abuse of discretion and its interpretation of the Guidelines de novo. United
States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462
(2010).
      Under § 1B1.10(b)(2)(A), “the court shall not reduce the defendant’s term
of imprisonment under [] § 3582(c)(2) and this policy statement to a term that
is less than the minimum of the amended guideline range.”                     As this court
previously explained in Evans’s separate appeal from a § 3582(c)(2) order,
“Booker1 does not alter the mandatory character of Guideline § 1B1.10’s
limitations on sentence reductions.’” Evans, 587 F.3d at 670 (quoting Doublin,
572 F.3d at 238); see Dillon v. United States, 130 S. Ct. 2683, 2687-93 (2010).
      Evans’s challenges to the enhancements to his sentence based on the
quantity of crack cocaine involved in the offense and his leadership role in the
offense and his argument that he should not have been sentenced based on an
offense involving crack cocaine are issues related to his initial sentencing
proceeding. “[A] § 3582(c)(2) motion is not a second opportunity to present


      1
          United States v. Booker, 543 U.S. 220 (2005).

                                              2
   Case: 10-50890    Document: 00511506235     Page: 3   Date Filed: 06/13/2011

                                  No. 10-50890

mitigating factors to the sentencing judge, nor is it a challenge to the
appropriateness of the original sentence.” United States v. Whitebird, 55 F.3d
1007, 1011 (5th Cir. 1995). Evans’s arguments pertaining to issues related to his
initial sentencing are not cognizable in a § 3582(c)(2) proceeding. See Evans, 587
F.3d at 674. Moreover, to the extent that Evans argues that his sentence was
enhanced based on facts not found by a jury, “proceedings under § 3582(c)(2) do
not implicate the Sixth Amendment right to have essential facts found by a jury
beyond a reasonable doubt.” Dillon, 130 S. Ct. at 2692.
      Evans has not shown that the district court abused it discretion or erred
in interpreting the Guidelines in granting in part and denying in part his
§ 3582(c)(2) motion. See Evans, 587 F.3d at 672. The judgment of the district
court is AFFIRMED.




                                        3
