     Case: 19-20568       Document: 00515382966         Page: 1     Date Filed: 04/15/2020




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


                                     No. 19-20568
                                                                                 FILED
                                                                             April 15, 2020
                                   Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

RANDY BAKER,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:96-CR-187-2


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Randy Baker, federal prisoner # 75188-079, proceeding pro se and in
forma pauperis, challenges the district court’s order denying his motion,
pursuant to 18 U.S.C. § 3582(c)(2) and the First Step Act of 2018, Pub. L. No.
115-391, 132 Stat. 5194 (2018), for a sentence reduction in the light of
Amendments 750 (revising Drug Quantity Table as to crack cocaine) and 782
(reducing offense levels for drug-trafficking offenses) to the Sentencing


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 19-20568

Guidelines. (Although Baker’s notice of appeal was untimely, the Government
affirmatively waived the non-jurisdictional requirement of a timely notice of
appeal. See United States v. Martinez, 496 F.3d 387, 388–89 (5th Cir. 2007)
(per curiam).)
      To the extent Baker challenges the denial of a sentence reduction under
§ 3582(c)(2), review is for abuse of discretion. See United States v. Quintanilla,
868 F.3d 315, 319 (5th Cir. 2017) (per curiam) (citation omitted). To the extent
Baker challenges the district court’s interpretation of a federal statute, review
is de novo. See United States v. Hegwood, 934 F.3d 414, 417 (5th Cir.) (citation
omitted), cert. denied, 140 S. Ct. 285 (2019).
      Baker cannot show the court erred in refusing to adjust his sentence. At
Baker’s original sentencing, the district court sentenced him to, inter alia, 360-
months’ imprisonment, based on its determination he was a career offender
with an offense-level of 38, a criminal-history category of VI, and an advisory
Guidelines   sentencing    range     of   360-months’   imprisonment      to   life
imprisonment. Baker’s offense level, post-Fair Sentencing Act of 2010, Pub. L.
No. 111-220, 124 Stat. 2372 (2010), has been reduced by two levels to 36. But,
because Baker is a career offender, he is subject to an offense level of 37 (not
36); and, at criminal-history category VI, his advisory Guidelines sentencing
range remains unchanged at 360-months’ imprisonment to life imprisonment.
See U.S.S.G. §§ 4B1.1 (1995); 5A (1995).
      Although Baker contends the court should have revisited its career-
offender finding upon reviewing his sentence, our court has held “the First Step
Act grants a district judge limited authority to consider reducing a sentence
previously imposed”. Hegwood, 934 F.3d at 418. In that regard, “the First
Step Act does not allow plenary resentencing”. Id. at 415. Instead, in deciding
the new sentence, the district court “plac[es] itself in the time frame of the



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                                No. 19-20568

original sentencing, altering the relevant legal landscape only by the changes
mandated by the 2010 Fair Sentencing Act”.        Id. at 418.   A court, when
interpreting the First Step Act, “commit[s] no error in continuing to apply the
career-criminal enhancement when deciding on a proper sentence”. Id. at 419.
      Baker also asserts the court failed to give adequate weight to his post-
sentencing conduct and imposed a sentence that was greater than necessary
to satisfy the statutory sentencing factors. Under Hegwood, however, the court
was not required to consider Baker’s post-sentencing conduct or reapply the
statutory sentencing factors. See United States v. Jackson, 945 F.3d 315, 321–
22 (5th Cir. 2019) (citing Hegwood, 934 F.3d at 418).
      AFFIRMED.




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