     Case: 09-31196     Document: 00511243450          Page: 1    Date Filed: 09/24/2010




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

                                                 FILED
                                                                        September 24, 2010
                                     No. 09-31196
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DECARLOS BROOKS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                             USDC No.5:05-CR-50074-1


Before GARWOOD, PRADO and HAYNES, Circuit Judges.
PER CURIAM:*
        Decarlos Brooks, federal prisoner # 12873-035, appeals following the
district court’s denial of his 18 U.S.C. § 3582(c)(2) motion and his motion for
reconsideration of that denial. He argues the district court erred by denying him
relief based on the original presentence report and its finding that he was
accountable for 4.73 kilograms of crack cocaine.
        Brooks’ PSR determined that “[t]he most conservative amount of crack
cocaine . . . [attributable to Brooks] in this offense equals 4,730.5 grams or 4.73

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-31196   Document: 00511243450 Page: 2        Date Filed: 09/24/2010
                                No. 09-31196

kilograms of crack cocaine.” At the September 11, 2006 sentencing hearing the
court considered and expressly rejected the defense objection that this
calculation was wrong, although it also correctly remarked that the same
ultimate guideline range (135 to 168 months) would be produced by 1.51
kilograms of crack cocaine, as the district court expressly noted during the
sentencing hearing. At the conclusion of the evidence and argument portion of
the sentencing hearing, the district court stated:
            “In this particular instance, the Court is going to adopt the
      factual findings of the U.S. Probation Office as contained in the
      Presentence Report and any addendum.
            The Court has previously found that the calculated amounts
      in the Presentence Report with respect to the offense conduct with
      respect to the conspiracy are sufficiently borne out in fact through
      the testimony under oath by Mr. Porter, who was the supplier of Mr.
      Brooks.”
The court then proceeded to sentence Brooks to 135 months’ confinement
followed by four years supervised release. In its September 15, 2006 written
statement of reasons for sentencing, the court stated: “The court adopts the
presentence investigation report without change.”          On Brooks’ appeal,
challenging his sentence and the amount of crack cocaine attributable to him,
we affirmed. United States v. Brooks, No. 06-30993, 5th Circuit, May 9, 2007
(unpublished).
      In February 2008, and again in April 2008, Brooks moved in the district
court for reduction of his sentence under 18 U.S.C. § 3582(c)(2) on the basis of
guideline amendment 706, effective November 1, 2007, which amended
guidelines § 2D1.1(c)(1) & (2) as to increase the amount of crack cocaine which
under that section produced a sentencing base offense level of 38 from 1.5 KG (as
it was when Brooks was sentenced) to 4.5 KG, with 1.5KG now producing
thereunder a base offense level of 36. Had the base offense level been 36,
Brooks’ guideline range would have been 108 to 135 months. The district court
in 2009 denied the motion, noting that the probation office had advised “that the


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                                 No. 09-31196

total crack cocaine attributable to the Defendant . . . was 4.73 kilograms, which
remains in the highest base offense level (38) established by the newly enacted
guideline level for crack cocaine” and stating that “the Court finds that no
reduction in sentence . . . [under] § 3582(b)(2) is authorized . . . as the
Defendant’s base offense level under the newly enacted guideline level for crack
cocaine remains at 38.” Brooks timely moved for reconsideration, which motion
the district court denied in a December 2009 order, stating that the court at
sentencing did specifically “uphold the calculated findings of the crack cocaine
shown in the Presentence Report” which “specifically delineate[s] the quantity
of crack cocaine attributable to . . . [Brooks] as 4.73 kilograms.” The court noted
that the “attempt to collaterally attack the factual basis underlying his original
sentence is beyond the scope of . . . § 3582(c),” and it hence rejected Brooks’
request for “a hearing to re-examine the exact amount of crack cocaine for which
he should be held responsible.” It stated:
      “The original finding of the Court that Defendant was responsible
      for 4.73 kilograms of crack cocaine remains undisturbed, and the
      base offense level (38) attributable to Defendant remains
      unchanged. As such, Defendant is ineligible for a reduction in
      sentence pursuant to 18 U.S.C. § 3582(c).”
Brooks thereafter timely appealed.
      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence where the sentencing range is later lowered by the Sentencing
Commission. See § 3582(c)(2). The decision whether to reduce a sentence under
§ 3582(c)(2) is discretionary, and we review the denial of a section 3582 motion
for an abuse of discretion. United States v. Boe, 117 F.3d 830, 831 (5th Cir.
1997).
      Amendment 706 modified the guidelines’ ranges applicable to crack
cocaine offenses. See United States v. Burns, 526 F.3d 852, 861 (5th Cir. 2008).
However, where the defendant was held accountable for 4.5 kilograms or more
of crack cocaine, Amendment 706 provides for no change in the guidelines’


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                                   No. 09-31196

sentencing range.      See Supp. to App. C, Amend. 706; § 2D1.1, comment.
(n.10(D)(ii)(I)).   Accordingly, defendants who were held accountable for 4.5
kilograms    or     more   of   crack   cocaine   are   ineligible   for   relief   under
section 3582(c)(2). Since Brooks was found to be accountable for 4.73 kilograms
of crack cocaine, his offense level remains unchanged by the Amendment.
Further, a section 3582(c)(2) movant is not entitled to have the district court
recalculate his base offense level. See United States v. Whitebird, 55 F.3d 1007,
1011 (5th Cir. 1995) (noting that a section 3582(c)(2) motion is not a challenge
to the appropriateness of the original sentence); see also United States v.
Reynolds, 2010 WL 1976573 (5th Cir. May 18, 2010) (unpublished); §
1B1.10(b)(1), p.s. (noting that a district court considering a reduction under
section 3582(c)(2) “shall leave all other guideline application decisions
unaffected.”). Thus, Brooks was not entitled to reconsideration of the finding
that he was accountable for 4.73 kilograms of crack cocaine. The district court
did not abuse its discretion in denying Brooks’s motion. Boe, 117 F.3d at 831.
       AFFIRMED.




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