     Case: 10-11294     Document: 00511655557         Page: 1     Date Filed: 11/04/2011




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

                                                                            FILED
                                                                         November 4, 2011
                                     No. 10-11294
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

PEDRO MCPHEARSON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:99-CR-4-2


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Pedro McPhearson, federal prisoner # 32559-077, appeals his reduced
sentence after the district court’s grant of his 18 U.S.C. § 3582(c) motion and the
district court’s denial of his motion for equitable modification of his sentence
beyond the statutory authority granted by § 3582(c).
        The district court granted McPhearson’s motion to reduce his sentence
under § 3582(c)(2) based on the crack cocaine amendment. The court explained
that McPhearson’s previous guideline range was 262 to 327 months of

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-11294    Document: 00511655557      Page: 2   Date Filed: 11/04/2011

                                     No. 10-11294

imprisonment and that his amended guideline range was 210 to 262 months of
imprisonment. The district court reduced McPhearson’s term of imprisonment
to 262 months of imprisonment, the top end of the amended sentencing range.
The district court stated: “The reduced sentence is the statutory minimum
sentence within the guideline range.”
      McPhearson argues that the district court erred in reducing his sentence
to 262 months when it intended to reduce it to the statutory minimum sentence,
210 months. The Government disagrees that the district court clearly intended
to impose a sentence of 210 months, but it agrees that the district court’s order
is ambiguous on the intended sentence reduction and the court’s understanding
of its discretion under § 3582(c).
      The district court may have simply miscommunicated its intended
description of the 262-month reduced sentence, saying “minimum” when it
meant “maximum” sentence within the amended guideline range. Alternatively,
the district court may have intended to note that the 262-month reduced
sentence was the minimum sentence it could have imposed at the original
sentencing, using the phrase “guideline range” to mean the original guideline
range, not the amended guideline range. That description is unnecessary but
not erroneous. On the other hand, the district court’s statement could refer to
the minimum of the amended guideline range, 210 months, indicating that the
court intended to reduce McPhearson’s sentence to the minimum term in the
amended range. If so, the district court misstated its intended sentence, and
McPhearson would be entitled to have the judgment amended accordingly to 210
months.
      Another possibility is that the district court accurately stated its intent to
reduce the sentence to 262 months but may have erroneously believed that it
lacked the authority to reduce the sentence any lower. The district court’s
description of the 262-month sentence as the “statutory minimum” might reflect
an erroneous belief by the district court that the Sentencing Commission’s policy

                                          2
   Case: 10-11294    Document: 00511655557      Page: 3    Date Filed: 11/04/2011

                                  No. 10-11294

statements limited the extent of a sentence reduction to the minimum of the
original guideline range. The policy statements allow the district court to reduce
a prison term to any point within but not less than the minimum of the amended
guideline range. U.S.S.G. § 1B1.10(b)(2)(A). The district court had the authority
to reduce the sentence to 210 months if it so intended.
      The district court’s order is ambiguous as to the reduced sentence the court
intended to impose and as to the court’s understanding of the extent of its
discretion under § 3582(c)(2). As suggested by the Government, we retain
jurisdiction over the case and make a limited remand for clarification of the
record. See United States v. Garcia-Rodriguez, 640 F.3d 129, 134 (5th Cir. 2011);
United States v. Runyan, 275 F.3d 449, 468 (5th Cir. 2001).
      McPhearson argues that the circumstances of his erroneous release,
rehabilitation, and reincarceration constitute a waiver by the Government of its
jurisdiction over him, or warrant an evidentiary hearing on the propriety of the
Government’s inaction. He also argues that the district court erred in failing to
give him credit for the time that elapsed while he was erroneously at liberty.
For the first time in his appellate brief, he asserts that the district court had
jurisdiction under 28 U.S.C. § 2241, and he characterizes his motion for
equitable relief as a petition for a writ of habeas corpus.
      Section 2241 is the proper procedural vehicle if a prisoner is challenging
the execution of his sentence rather than the validity of his conviction and
sentence. Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001). Because
McPhearson is challenging the execution of his sentence, a § 2241 petition is
proper. See Jeffers, 253 F.3d at 830; see also Leggett v. Fleming, 380 F.3d 232,
233-34 (5th Cir. 2004) (action for credit against sentence for time spent at liberty
brought under § 2241).
      However, McPhearson did not file a § 2241 petition in the district court.
He filed a § 3582(c) motion and a motion to invoke the court’s equitable
authority.   The district court determined that McPhearson’s request for

                                         3
   Case: 10-11294    Document: 00511655557      Page: 4   Date Filed: 11/04/2011

                                   No. 10-11294

equitable relief did not fall within any of the limited circumstances by which the
court could modify his term of imprisonment under § 3582(c). Alternatively,
assuming that it had the equitable power necessary, and assuming that
McPhearson’s motion was the proper avenue to raise such a claim, the district
court denied the claim on its merits.
      The district court correctly ruled that it lacked authority to grant
McPhearson’s claim for equitable relief under § 3582(c). Section 3582(c)(2)
proceedings are not full resentencing proceedings. Dillon v. United States, 130
S. Ct. 2683, 2690-94 (2010). In ruling on a § 3582(c) motion, a sentencing court
lacks discretion to reduce a sentence to a term that is less than the minimum of
the amended guideline range as provided in § 1B1.10, p.s. Id.; United States v.
Doublin, 572 F.3d 235, 238 (5th Cir. 2009).
      McPhearson could and should have sought the relief requested in a § 2241
petition filed in the district of his confinement, in this case in California. The
only district that may consider a habeas corpus challenge to present physical
confinement pursuant to § 2241 is the district in which the prisoner is confined.
Rumsfeld v. Padilla, 542 U.S. 426, 442-43 (2004); Lee v. Wetzel, 244 F.3d 370,
375 n.5 (5th Cir. 2001). The Government cannot be considered to have waived
its objection to the district court’s jurisdiction under § 2241. McPhearson did not
assert below that the district court had jurisdiction to modify his sentence under
§ 2241, and the district court did not consider § 2241 as a possible source of
jurisdiction.   The Government objected to § 2241 jurisdiction at the first
opportunity presented, in its brief opposing McPhearson’s assertion of § 2241
jurisdiction in his brief for the first time on appeal.
      We AFFIRM the judgment denying equitable modification of the sentence.
We REMAND to the district court for clarification of its intended sentence.




                                         4
