     Case: 09-40080 Document: 00511319569 Page: 1 Date Filed: 12/13/2010




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

                                                 FILED
                                                                         December 13, 2010
                                     No. 09-40080
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JAMES DWAYNE ORTEGA, also known as Fat Boy,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 4:98-CR-14-21


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       James Dwayne Ortega, federal prisoner # 07046-078, appeals the district
court’s denial of relief on his motion for a reduction of sentence under 18 U.S.C.
§ 3582(c)(2). Ortega was convicted on drug-related counts, including a charge
that he conspired to possess with the intent to distribute over seven kilograms
of crack cocaine and other controlled substances. Ortega was sentenced to 292
months of imprisonment on the above conspiracy count. This court affirmed



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40080

Ortega’s convictions and sentences. United States v. Hernandez, No. 98-41246,
2001 WL 650227, at *11 (5th Cir. May 24, 2001).
      In challenging the district court’s denial of his § 3582(c)(2) motion, Ortega
contends that the district court had the authority to reduce his sentence
pursuant to the retroactive amendments to the Sentencing Guidelines
concerning crack cocaine. He disputes the determinations made at sentencing
as to the quantity of crack cocaine involved in the conspiracy, and he argues that
the district court erred in denying relief without conducting an evidentiary
hearing.   Ortega asserts that the Government conceded error as to the
determination of drug quantity in his direct appeal. He also maintains that
United States v. Booker, 543 U.S. 220 (2005), is applicable to § 3582(c)(2)
proceedings. Ortega moves for appointment of counsel on appeal and for the
production of certain documents.
      Effective November 1, 2007, the United States Sentencing Commission
(“the Commission”) adopted Amendment 706, which modified the guidelines
ranges applicable to crack cocaine offenses to reduce the disparity between crack
cocaine and powder cocaine sentences. U.S.S.G. Supp. to App’x C, Amend. 706
(Nov. 1, 2009); see United States v. Burns, 526 F.3d 852, 861 (5th Cir. 2008). The
general effect of Amendment 706 is to decrease by two levels the base offense
levels for crack cocaine offenses. See Burns, 526 F.3d at 861. In addition,
effective May 1, 2008, the Sentencing Commission enacted Amendment 715,
which modified the commentary to § 2D1.1 of the Guidelines to revise the
manner in which combined offense levels are determined in cases involving
cocaine base and one or more other controlled substance. U.S.S.G. Supp. to
App’x C, Amend. 715. Pursuant to Amendment 715, the two-level reduction for
offenses involving crack cocaine does not apply in a case where “the offense
involved 4.5 kg or more, or less than 250 mg, of cocaine base.” Id., Amend. 715.
At Ortega’s sentencing hearing, the district court expressly adopted the drug
quantity determinations set forth in the Presentence Report, which found that

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                                  No. 09-40080

Ortega was accountable for 32.5 kilograms of crack cocaine. In his direct appeal,
Ortega challenged the amount of drugs attributable to him for sentencing
purposes, and this court rejected his arguments. Hernandez, 2001 WL 650227,
at *2 n.1, 9-10.   Ortega may not relitigate the issue of drug quantity in a
§ 3582(c)(2) motion. See United States v. Evans, 587 F.3d 667, 674 (5th Cir.
2009), cert. denied, 130 S. Ct. 3462 (2010); United States v. Shaw, 30 F.3d 26, 29
(5th Cir. 1994). As there was no cognizable factual dispute, the district court did
not err in denying relief without conducting an evidentiary hearing. See Dickens
v. Lewis, 750 F.2d 1251, 1255 (5th Cir. 1984).
      Contrary to Ortega’s assertion, Booker is not applicable in § 3582(c)(2)
proceedings. See Dillon v. United States, 130 S. Ct. 2683, 2691-94 (2010); United
States v. Doublin, 572 F.3d 235, 237-39 (5th Cir.), cert. denied, 130 S. Ct. 517
(2009). Additionally, there is no right to appointed counsel in a § 3582(c)(2)
proceeding. United States v. Whitebird, 55 F.3d 1007, 1010-11 (5th Cir. 1995);
United States v. Hereford, No. 08-10452, 2010 WL 2782780, at *1-2 (5th Cir. July
12, 2010). Moreover, the interest of justice did not require the appointment of
counsel because Ortega’s § 3582(c)(2) motion did not involve complicated or
unresolved issues. Cf. United States v. Robinson, 542 F.3d 1045, 1052 (5th Cir.
2008). The district court therefore did not err by denying Ortega’s motion for
appointment of counsel, and we decline to appoint counsel on appeal for the
same reasons.
      In view of the foregoing, the judgment of the district court is AFFIRMED,
the Government’s motion for summary affirmance is GRANTED, and the
Government’s alternate request for an extension of time to file a brief is
DENIED. Ortega’s motion for the appointment of counsel on appeal is DENIED,
and his motion for the production of documents is DENIED.




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