     Case: 09-30369 Document: 00511471905 Page: 1 Date Filed: 05/10/2011




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

                                                 FILED
                                                                            May 10, 2011
                                     No. 09-30369
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RAFAEL FULGENCIO, also known as Roberto Guzman Ortiz,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                            USDC No. 6:00-CR-60029-9


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Rafael Fulgencio, federal prisoner # 10754-035, is serving a 141-month
sentence following his conviction of conspiracy to possess with intent to
distribute more than 50 grams of crack cocaine. He appeals the denial of his
18 U.S.C. § 3582(c)(2) motion, wherein he sought a reduction of sentence based
on the retroactive amendments to U.S.S.G. § 2D1.1, the Sentencing Guideline
for crack cocaine offenses. He argues that the district court abused its discretion



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-30369 Document: 00511471905 Page: 2 Date Filed: 05/10/2011

                                  No. 09-30369

by denying his motion based on a clearly erroneous determination that the
offense involved more than 4.5 kilograms of crack cocaine.
      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. See
Dillon v. United States, 130 S. Ct. 2683, 2691 (2010). We review a district court’s
denial of a reduction under § 3582(c)(2) for an abuse of discretion, its
interpretation of the Guidelines de novo, and its findings of fact for clear error.
United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert. denied, 130 S. Ct.
3462 (2010).
      Fulgencio correctly observes that, at the time he was sentenced, a
defendant would qualify for the maximum offense level under § 2D1.1 where the
offense involved 1.5 kilograms or more of crack cocaine. Following the 2007
amendments, the maximum offense level under § 2D1.1 applies where the
offense involves 4.5 kilograms or more of crack cocaine.
      The presentence report in this case indicated that Fulgencio was being
held responsible for more than 1.5 kilograms of crack cocaine because he was
responsible for 39.3 kilograms of cocaine powder, and it was reasonably
foreseeable to him that this cocaine would be converted to crack cocaine and then
sold. The Crack Cocaine Guideline Recalculation prepared by the Probation
Office indicates that Fulgencio’s offense involved at least 39.3 kilograms of
cocaine base, based on a one-to-one conversion ratio of cocaine powder to crack
cocaine.
      This court has not adopted a particular conversion ratio for cases involving
crack cocaine. However, we have affirmed cases involving a range of conversion
ratios. See United States v. Booker, 334 F.3d 406, 413-414, n. 3 (5th Cir. 2003);
United States v. Rodriguez, 305 F. App’x 206, 208 (5th Cir. 2008); United States
v. Britton, 225 F. App’x 219, 222 (5th Cir. 2007). Even assuming that the district

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                                 No. 09-30369

court should have applied the “conservative and realistic” one-to-.5 conversion
ratio used in Booker, the district court did not clearly err in determining that
Fulgencio’s offense involved more than 4.5 kilograms of crack cocaine.
Application of the Booker ratio would yield approximately 19.7 kilograms of
crack, well above the 4.5 kilogram threshold.
      The district court did not clearly err by finding that the offense involved
more than 4.5 kilograms of crack cocaine.       See Evans, 587 F.3d at 672.
Therefore, the 2007 amendments to § 2D1.1 did not have the effect of lowering
Fulgencio’s applicable guidelines range.      See § 1B1.10(a)(2)(B).    Because
Fulgencio’s guidelines calculations were not affected by the amendments, he was
not eligible for a reduction under § 3582(c)(2). Consequently, the district court
did not abuse its discretion by denying Fulgencio’s § 3582(c)(2) motion. See
Dillon, 130 S. Ct. at 2691.
      AFFIRMED.




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