     Case: 10-30302 Document: 00511317171 Page: 1 Date Filed: 12/09/2010




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

                                                 FILED
                                                                          December 9, 2010
                                     No. 10-30302
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DAMIENE MILES, also known as Damiane Miles, also known as Dope Fiend,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                            USDC No. 5:99-CR-50071-4


Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Damiene Miles, federal prisoner # 10335-035, was convicted of conspiracy
to possess with intent to distribute and aid and abet the possession with intent
to distribute five grams or more of crack cocaine. He appeals the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence. The district
court’s decision whether to reduce a sentence pursuant to § 3582(c)(2) is
reviewed for abuse of discretion, while its interpretation or application of the



       *
        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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-30302

Guidelines is reviewed de novo. United States v. Evans, 587 F.3d 667, 672 (5th
Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010).
      Miles argues that the district court committed reversible error by denying
his § 3582(c)(2) motion. He maintains that the sentencing court never made any
express findings regarding the quantity of crack cocaine attributable to him,
specifically whether Miles was responsible for 20 of the 22 kilograms of crack
cocaine attributed to him in the presentence report (PSR). Miles also argues
that the district court abused its discretion in denying his request for an
evidentiary hearing on the issue of drug quantity.
      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence only where the defendant’s sentencing range is actually lowered by the
Sentencing Commission. See § 3582(c)(2). Here, the sentencing court explicitly
adopted the facts and conclusions in the PSR, including the finding that Miles
was responsible for at least 22 kilograms of crack cocaine. Accordingly, because
Miles was accountable for more than 4.5 kilograms of cocaine base, he was
ineligible for a sentence reduction based upon the crack cocaine amendments.
See U.S.S.G. Supp. to App’x C, Amend. 706; § 2D1.1(c)(1) & comment.
(n. 10(D)(ii)). His base offense level consequently was not modified, and his
advisory guidelines range was not lowered as a result of the amendments. Thus,
the district court did not err in determining that Miles was ineligible for a
sentence reduction under § 3582(c)(2). See Evans, 587 F.3d at 672.
      To the extent that Miles challenges the calculation of the relevant drug
quantity at his initial sentencing, that issue is beyond the scope of the guidelines
amendment and is not cognizable in a § 3582(c)(2) proceeding.                   See
§ 1B1.10(a)(3), (b)(1); see also United States v. Doublin, 572 F.3d 235, 237 (5th
Cir.) (observing that § 1B1.10 is made mandatory by § 3582), cert. denied, 130
S. Ct. 517 (2009); Evans, 587 F.3d at 674 (“A § 3582(c)(2) motion is not the
appropriate vehicle for raising [issues related to the original sentencing].”)
(internal quotation marks and citation omitted). Additionally, Miles’ argument

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                                 No. 10-30302

that the issue preclusion standard discussed in Bobby v. Bies, 129 S. Ct. 2145,
2152 (2009), should be applied in his case is unavailing.
      Lastly, the district court did not abuse its discretion in denying Miles’s
motion for a reduction in sentence without conducting an evidentiary hearing.
See Dickens v. Lewis, 750 F.2d 1251, 1255 (5th Cir. 1984).
      AFFIRMED.




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