     Case: 12-30771       Document: 00512137988         Page: 1     Date Filed: 02/07/2013




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

                                                                            FILED
                                                                         February 7, 2013
                                     No. 12-30771
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

MARCUS DARON PENNYWELL, also known as Marcus D Pennywell,

                                                  Defendant-Appellant.


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 1:04-CR-10021-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Marcus Daron Pennywell, federal prisoner # 12382-035, appeals the
district court’s denial of a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2)
based on the United States Sentencing Commission’s retroactive amendments
to the crack cocaine guidelines. Pennywell pleaded guilty in 2004 to possession
with intent to distribute 50 grams or more of cocaine base (crack cocaine) in
violation of 21 U.S.C. § 841(a)(1) (Count One); possession of a firearm during, in
relation to, and in furtherance of a drug trafficking crime in violation of 18

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-30771

U.S.C. § 924(c)(1) (Count Two); possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1) (Count Three); and possession of a firearm
while being subject to a protective order in violation of 18 U.S.C. § 922(g)(8)
(Count Four). He was sentenced as a career offender to concurrent terms of 216
months of imprisonment on Count One and 120 months of imprisonment on
Counts Three and Four, and a consecutive term of 60 months of imprisonment
on Count Two.
      Pennywell contends that he was eligible for a sentence reduction under
§ 3582(c)(2) because his non-guidelines sentence on Count One was not based on
the Career Offender Guideline. The Government has filed a motion for summary
affirmance or, in the alternative, for an extension of time in which to file a brief
on the merits.
      “Section 3582(c)(2) permits a district court to reduce a term of
imprisonment when it is based upon a sentencing range that has subsequently
been lowered by an amendment to the Guidelines, if such a reduction is
consistent with the policy statements issued by the Sentencing Commission.”
United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997) (per
curiam); see U.S.S.G. § 1B1.10(a)(1) (2011). The district court’s decision whether
to reduce a sentence under § 3582(c)(2) is reviewed for an abuse of discretion.
United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009).
      Contrary to Pennywell’s contention, his sentence was both based on the
Career Offender Guideline and within the applicable guidelines range. Pursuant
to U.S.S.G. § 4B1.1(c) (2004), the district court concluded that Pennywell was
subject to a guidelines range of 262 to 327 months of imprisonment.              In
accordance with § 5G1.2(e) (2004), the district court apportioned the total
punishment among the four counts of conviction. Thus, although the 216-month
sentence imposed on Count One fell below the applicable guidelines range, the
total punishment of 276 months of imprisonment was well within that range.
Because Pennywell was sentenced as a career offender, the district court did not

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                                No. 12-30771

abuse its discretion in determining that he was not eligible for a sentence
reduction under § 3582(c)(2). See United States v. Anderson, 591 F.3d 789, 791
(5th Cir. 2009) (per curiam). Accordingly, the district court’s judgment is
AFFIRMED, the Government’s motion for summary affirmance is GRANTED,
and the Government’s motion for an extension of time is DENIED. Pennywell’s
motion for an evidentiary hearing is also DENIED.




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