     Case: 12-10111       Document: 00512086223         Page: 1     Date Filed: 12/17/2012




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

                                                                            FILED
                                                                        December 17, 2012
                                     No. 12-10111
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

TIMOTHY NEWMAN BROWN,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:95-CR-16-2


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       In July 1995, a jury convicted Timothy Newman Brown, federal prisoner
# 26240-077, of one count of conspiracy to possess with intent to distribute more
than 50 grams of crack cocaine, two counts of possession with intent to distribute
50 grams or more of crack cocaine, and two counts of using a firearm during a
drug-trafficking crime. The district court sentenced Brown to a total of 624
months. This court later overturned Brown’s convictions on both firearms
counts, upheld the remaining convictions, and remanded the case to the district

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10111     Document: 00512086223     Page: 2   Date Filed: 12/17/2012

                                  No. 12-10111

court for a new trial on one of the firearms counts. United States v. Brown, 102
F.3d 1390, 1400 (5th Cir. 1996). The Government filed a motion to dismiss the
firearms counts, and the district court granted it; the district court issued an
amended judgment reflecting Brown’s new total sentence of 324 months of
imprisonment.
      In 2011, Brown moved pursuant to § 3582(c)(2) for a sentence reduction
based on an amendment to the crack cocaine guidelines (Amendment 750). The
district court denied Brown’s motion, and Brown now appeals that denial. He
argues that the district court abused its discretion in denying his § 3582(c)(2)
motion for a reduction in his sentence.
      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. 2009). In such cases, the district court may reduce a sentence after
considering the applicable factors under 18 U.S.C. § 3553(a) and the applicable
guideline policy statements. § 3582(c)(2). The district court’s determination of
whether to reduce a sentence is reviewed for an abuse of discretion. United
States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009).
      Our review of the record reveals that in denying Brown’s § 3582(c)(2)
motion, the district court properly considered the § 3553(a) factors, guideline
policy statements, and Brown’s self-improvement achievements. See Evans, 587
F.3d at 672-73; U.S.S.G. § 1B1.10; § 3582(c)(2). Brown has not shown that the
district court abused its discretion in denying his § 3582(c)(2) motion. See
Evans, 587 F.3d at 672-73.
      Brown also argues that his sentence is in excess of the statutory maximum
because the district court did not find a specific quantity of drugs and was
therefore limited to a statutory maximum of 20 years.
      Section 3582(c)(2) proceedings are not “plenary resentencing proceedings”
but rather, are “a narrow exception to the rule of finality” of judgments and “do

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                                  No. 12-10111

not implicate the Sixth Amendment right to have essential facts found by a jury
beyond a reasonable doubt.” Dillon v. United States, 130 S. Ct. 2683, 2692
(2010). Even if this court had jurisdiction to consider this claim, the claim would
fail; Brown was convicted by a jury of possessing with the intent to distribute
more than 50 grams of crack cocaine, an offense that supports the statutory
maximum sentence of 40 years under the Fair Sentencing Act. 21 U.S.C.
§ 841(a)(1) and (b)(1)(B)(iii) (2011). Brown’s sentence of 324 months is not in
excess of the statutory maximum. Id.
      Brown’s request for the appointment of counsel is denied.
      AFFIRMED; MOTION DENIED.




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